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Ching v. Lewis

*fn* submitted san francisco california: February 1, 1993.

GARY W. CHING, PLAINTIFF-APPELLANT,
v.
SAMUEL A. LEWIS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona. DC Nos. CIV-88-2107-PHX-SMM, CIV-89-0011-PHX-SMM. Stephen M. McNamee, District Judge, Presiding

Before: Fletcher, Reinhardt, and Noonan, Circuit Judges

MEMORANDUM

Gary W. Ching (Ching) appeals the district court's dismissal of two separate § 1983 actions filed while Ching was incarcerated.

Ching filed the first two cases consolidated in this appeal on December 29, 1988. The complaint seeks damages from several defendants for common lab torts and for violations of Ching's civil rights. Ching filed his second complaint on January 4, 1989. The 1989 complaint charges prison administrators and medical personnel with denying him adequate medical care and with obstructing his access to the courts.

BACKGROUND

Arizona Department of Corrections employees took Ching to Pinal General Hospital in December 1987 for treatment of bleeding gums two weeks after having his wisdom teeth removed. Nurse Hoffman examined him.

Ching alleges that Nurse Hoffman told the three prison guards in charge of escorting him to the emergency room that they should wear rubber gloves while handling Ching because he was infected with hepatitis B. Following his return to the prison, Ching claims that the prison officials destroyed his property to control contamination risks based on Nurse Hoffman's statement that he had hepatitis B. Ching claims that other inmates learned of the hepatitis charge and harassed him until another inmate whacked him in the eye with a two-by-four. Once again Ching was taken to Final General Hospital for care where Dr. Robert L. Hyde examined and x-rayed his eye and recommended an ice pack as the only necessary treatment.

Ching filed this suit against Nurse Hoffman for common law slander and violation of his 1st, 5th, 8th, and 14th amendment rights by deliberately fabricating the hepatitis charge. Ching also sues Hoffman for medical malpractice for the care that he received for his bleeding gums, and charges Pinal General Hospital with malpractice and eighth amendment violations in connection with the treatment of his eye injuries. Ching separately sues prison employees and administrators for destroying his property and for failing to protect him from other inmates who threatened and harassed him.

On August 3, 1990, the district court dismissed the action against Nurse Hoffman for lack of federal jurisdiction and granted summary judgment for Pinal General Hospital on the malpractice claim. The district court then dismissed all of the remaining claims on March 13, 1991 as a sanction for Ching's discovery abuses and excessive delay of the litigation. Ching appeals.

Discussion

I. The 1988 Case

A. Nurse Hoffman

We affirm the district court's August 3, 1990 dismissal of the claims against Nurse Hoffman for lack of federal jurisdiction. Ching's defamation and malpractice claims do not present a federal question. An act of defamation must be intertwined with or must directly cause the violation of a federally protected right in order to be actionable under section 1983. See Cooper v. Dupnik, 924 F.2d 1520, 1531-32 (9th Cir. 1991), on rehearing, 963 F.2d 1220 (en banc). The loss of property and the beating by the inmate were not sufficiently intertwined with Nurse Hoffman's allegedly defamatory statement to meet the Cooper test and they were not directly caused by Nurse Hoffman's alleged statement.

We also reject Ching's contention that his malpractice claim against Nurse Hoffman rises to the level of an eighth amendment violation. Ching's allegations that Hoffman was "prejudicial" toward him and did not do enough to stop his bleeding gums do not constitute the "deliberate indifference" to a "serious" medical need that is required to sustain an eighth amendment complaint for inadequate medical care. Hudson v. McMillan, 112 S. Ct. 995, 1000 (1992).

B. Pinal General Hospital

We affirm the district court's grant of summary judgment for Final General Hospital on Ching's medical malpractice claim. Under Arizona law, Ching must support his allegations with expert testimony that the treatment that he received for his eye injury fell below the standard of care in the field. Potter v. Wisner, 823 F.2d 1339 (Ariz. 1991). Ching ...


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