NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY LYNN DAVIS, 

 Plaintiff-Appellant, 

 v. 

DEPARTMENT OF CORRECTIONS; et al., 

 Defendants-Appellees.

No. 22-35109 

D.C. No. 3:20-cv-05433-BHS 

MEMORANDUM* 

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted April 10, 2023

Seattle, Washington

Before: BYBEE and FORREST, Circuit Judges, and GORDON,** District Judge.

Jerry Lynn Davis appeals the district court’s order granting summary 

judgment in favor of the Washington Department of Corrections (DOC) and 

several of its employees. Davis brought claims under 42 U.S.C. § 1983, the 

Americans with Disabilities Act (ADA), and Washington law. His claims arise out 

 * This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

 

 ** The Honorable Andrew P. Gordon, United States District Judge for 

the District of Nevada, sitting by designation.

FILED

MAY 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

of his incarceration at DOC facilities and are based on (1) sleeping on a thin 

mattress and lifting heavy items in the kitchen despite a neck injury causing 

chronic pain, (2) the abrupt cessation of his mental health medication, and (3) a 

“rough ride” he alleges took place during his transportation back to prison after 

surgery.

We review a district court’s grant of summary judgment de novo and may 

affirm on any ground supported by the record. Simmons v. G. Arnett, 47 F.4th 927, 

932 (9th Cir. 2022). We have jurisdiction under 28 U.S.C. § 1291, and we affirm 

the district court on all but two claims: (1) Davis’s Eighth Amendment claim of 

deliberate indifference against transport officers Jason Butz and Aaron Pollard, and 

(2) his related negligence claim. 

1. The district court properly granted summary judgment on Davis’s Eighth 

Amendment claims against nurse Marci Newlon, psychiatrist Dr. Michael Furst, 

and custody sergeant Timothy Hull. Davis failed to introduce evidence that either 

Newlon or Furst provided care that was medically unacceptable under the 

circumstances or chose such care “in conscious disregard of an excessive risk to” 

Davis’s health. Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019). In the 

face of Davis reporting pain, Newlon repeatedly adjusted his pain medications, 

reviewed outside medical records, ordered x-rays and an MRI, and consulted with 

other medical providers regarding his care. Newlon testified that she did not 
3 

believe a lifting restriction or a second mattress was necessary, and the bare facts 

that Davis had a neck injury and repeatedly complained about his pain are not 

enough to infer her indifference. See Toguchi v. Chung, 391 F.3d 1051, 1057–60 

(9th Cir. 2004).

Similarly, Furst testified that after reviewing Davis’s records, he did not 

believe that the abrupt cessation of Davis’s amitriptyline prescription “represented 

an urgent situation, either medically or from a mental health perspective.” Davis 

argues that indifference can be inferred because Furst did not investigate a 

discrepancy in his medical records, but “[m]ere negligence in diagnosing or 

treating a medical condition” is not an Eighth Amendment violation. Id. at 1057 

(quotation omitted). The district court did not abuse its discretion in admitting 

Furst’s testimony about the pharmacy screen under Federal Rule of Evidence 1004

because there is evidence that the screen as Furst saw it in February 2019 could not 

be produced, as it is an electronic record that can be modified over time. See Fed. 

R. Evid. 1004(b) (allowing admission of “other evidence of the content of a 

writing” where “an original cannot be obtained by any available judicial process”).

Davis also failed to raise a genuine dispute that Hull was deliberately 

indifferent to his need for a new mattress. “[A] prison administrator can be liable 

for deliberate indifference to a prisoner’s medical needs if he knowingly fails to 

respond to an inmate’s requests for help.” Peralta v. Dillard, 744 F.3d 1076, 1085–
4 

86 (9th Cir. 2014) (en banc) (cleaned up). The record shows that rather than 

failing to respond, Hull inspected Davis’s mattress, saw it did not meet the criteria 

for replacement, and suggested Davis turn to the medical department. Davis 

claims Hull gave out new mattresses based on favoritism and ignored emails from 

medical staff documenting Davis’s pain. But Davis has no evidence of that

favoritism, and at best the emails show Hull was aware of facts from which he 

could infer a risk, not that Hull subjectively drew that inference. Because the 

Defendants established that Davis cannot show Newlon, Furst, or Hull acted with

subjective indifference, summary judgment was proper on Davis’s Eighth 

Amendment claims.

2. The district court also properly granted summary judgment on Davis’s 

First Amendment retaliation claims against Hull and Pollard. Davis claims that 

Hull ignored his valid requests for a new mattress because of Davis’s regular 

complaints. But Davis offers no evidence that Hull failed to replace the mattress 

because of those complaints. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th 

Cir. 2005) (holding that to state a First Amendment retaliation claim, a prisoner 

must allege protected conduct and retaliation “because of” that conduct). Instead, 

the evidence shows that Davis moved to a different bunk between Hull’s first and 

second inspection, and Hull replaced the second bunk’s mattress. This weakens 

Davis’s argument that Hull replaced the mattress after the second inspection only 
5 

because Davis complained to Hull’s superior.

Davis also claims Pollard retaliated against him with a rough ride when

Davis asked Pollard to drive carefully, but Pollard is shielded by qualified 

immunity because Davis has not identified relevant caselaw showing his First 

Amendment right was clearly established. See Shafer v. County of Santa Barbara, 

868 F.3d 1110, 1118 (9th Cir. 2017). 

3. The district court properly granted summary judgment to DOC on 

Davis’s ADA claim. Davis does not address how DOC’s conduct was deliberately 

indifferent under the ADA. See Updike v. Multnomah County, 870 F.3d 939, 950–

51 (9th Cir. 2017). The district court did not abuse its discretion in denying 

Davis’s motion for a permanent or preliminary injunction instructing DOC to 

comply with the ADA because Davis has not shown irreparable injury and his 

ADA claim fails on the merits. See Am. Trucking Ass’ns, Inc. v. City of Los 

Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

4. Davis asserts three claims related to his medical transport after neck 

surgery: (1) an Eighth Amendment deliberate indifference claim against transport 

officers Butz and Pollard, (2) a negligence claim against these two officers and the 

DOC, and (3) an outrage claim against Pollard. Davis asserts that Butz and Pollard 

were deliberately indifferent because after his neck surgery, Pollard drove him 

back to prison aggressively, causing him pain and vomiting, and Butz failed to 
6 

intervene. Davis presented evidence raising a genuine dispute about whether the 

transport officers subjectively knew of and disregarded the risk of harm. Butz and 

Pollard were aware that Davis had neck surgery two days before transport, and 

Davis was wearing a neck collar when he was released from the hospital. Davis 

asked Pollard before transport to drive carefully and avoid bumps, and he asked 

Pollard during the trip to stop hitting bumps. Butz and Pollard knew Davis 

vomited at least five times during the trip and Davis was the only inmate they 

transported who vomited during transport. Davis testified Pollard was driving 

recklessly by slamming the van’s brakes and taking hard turns, and Butz suggested 

they turn around because Davis was not ready for transport. Butz testified that 

Davis was screaming and “flailing.” That evidence, viewed in the light most 

favorable to Davis, could meet his burden at trial to “demonstrate that the risk was

obvious or provide other circumstantial or direct evidence that the prison officials 

were aware of the substantial risk.” Lemire v. Cal. Dep’t of Corr. & Rehab., 726 

F.3d 1062, 1078 (9th Cir. 2013). 

Butz and Pollard argue they are entitled to qualified immunity, but whether 

qualified immunity applies here depends on a jury’s resolution of factual issues. A

jury could find that Pollard inflicted unnecessary and wanton pain on Davis, and 

Butz failed to intervene. See Furnace v. Sullivan, 705 F.3d 1021, 1027–28 (9th Cir. 

2013); see also Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). We
7 

therefore reverse the district court’s grant of summary judgment on Davis’s Eighth 

Amendment claim against Butz and Pollard.1

Regarding negligence, Davis argued the Defendants breached their duty of 

care by negligently transporting him. The district court granted summary 

judgment to the Defendants because it reasoned that whether Davis’s injuries were 

caused by Pollard’s driving was a medical question necessitating expert testimony 

under Washington law, and Davis did not offer expert testimony. However, taking 

the facts in the light most favorable to Davis, a reasonable jury unaided by expert 

medical testimony could conclude Pollard’s driving injured Davis. See, e.g., Orcutt 

v. Spokane County, 364 P.2d 1102, 1105 (Wash. 1961) (en banc) (causation may 

be established by circumstantial evidence). Davis testified he was not nauseous 

before boarding the van and that Pollard’s reckless driving caused him so much 

pain that he vomited and lost control of his bowels. Davis was released before 

transport in stable condition with no reported nausea or vomiting. It is not outside 

a layperson’s knowledge that aggressive driving could cause pain and vomiting to 

a passenger recovering from neck surgery. Because Davis offered evidence from 

which a reasonable jury could find causation, we reverse the district court’s grant 

of summary judgment on the negligence claim.

1 Davis also brought an excessive force claim, but he did not address it on appeal 

and it is therefore forfeited. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 

1999).
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Finally, we affirm the district court’s grant of summary judgment against 

Davis’s outrage claim against Pollard. Davis presents no evidence that Pollard 

acted with the intent to cause, or with reckless disregard for causing, severe 

emotional distress. Reid v. Pierce County, 961 P.2d 333, 337 (Wash. 1998) (en 

banc). While Davis raised a genuine issue of whether Pollard was deliberately 

indifferent to causing physical pain, indifference to causing physical pain is 

distinguishable from an intent or reckless disregard to causing non-transient severe 

emotional distress. See Kloepfel v. Bokor, 66 P.3d 630, 636 (Wash. 2003) (en 

banc). Davis offers no evidence that Pollard had the requisite mental state for 

outrage liability.

5. Davis also appeals several discovery-related rulings, each of which we 

review for abuse of discretion. Facebook, Inc. v. Power Ventures, Inc., 844 F.3d

1058, 1070 (9th Cir. 2016). We affirm all discovery decisions.

Davis does not explain why DOC employees’ personal information is 

relevant to his claims and he does not show any prejudice caused by the court’s 

protective order. The district court therefore did not abuse its discretion in issuing 

the protective order. It was not an abuse of discretion to deny Davis’s motion to

extend discovery deadlines where the two2 Rule 30(b)(6) witnesses were 

2 On appeal, Davis argues a third 30(b)(6) witness was also unprepared. But he did 

not present this argument to the district court, and it is therefore forfeited.
9 

responsive to the questions asked and appeared prepared to discuss their designated 

topics. The district court did not abuse its discretion in denying Davis’s motion for 

Rule 37(d) sanctions and his related motion to compel because DOC substantially 

complied with the 30(b)(6) notice and further depositions were unnecessary. 

Finally, the district court did not abuse its discretion in denying Davis’s request for 

a Rule 56(d) continuance because Davis does not identify the specific facts sought 

nor explain why they were essential to oppose the motions for summary judgment. 

See Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018). 

AFFIRMED in part, REVERSED in part, and REMANDED.

Each party shall bear its own costs.