NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WINIFRED JIAU, 

Plaintiff-Appellant, 

 v. 

RANDY L. TEWS, Warden, FCI-Dublin, 

Defendant-Appellee.

No. 22-15576 

D.C. No. 4:13-cv-04231-YGR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted October 5, 2023**

Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges.

Former federal prisoner Winifred Jiau appeals pro se from the district court’s 

grant of summary judgment to defendant Warden Randy L. Tews in her action 

brought under Bivens v. Six Unknown Named Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. We 

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 5 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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review de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We 

affirm.

Prison officials sued for damages under Bivens are protected by qualified 

immunity unless their conduct “violate[s] clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Wilson v. 

Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)). Because the facts alleged by Jiau do not “make out a violation of a 

constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232 (2009), we need not 

consider whether any violation was clearly established. To maintain an Eighth 

Amendment claim based on prison medical treatment, Jiau must first “show a 

‘serious medical need’ by demonstrating that ‘failure to treat [her] condition could 

result in further significant injury or the ‘unnecessary and wanton infliction of 

pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. 

Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX 

Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). Jiau must also

show that “the defendant’s response to the need was deliberately indifferent” by 

demonstrating (1) “a purposeful act or failure to respond to a prisoner’s pain or 

possible medical need” and (2) “harm caused by the indifference.” Id. (citing

McGuckin, 974 F.2d at 1060).

Even assuming that Jiau has demonstrated a serious medical need, the facts 
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as viewed in the light most favorable to Jiau do not show that Warden Tews 

purposefully failed to respond to that need. Jiau was taken to the emergency room 

after experiencing a cardiac episode in August 2012, approved for a cardiology 

consultation in July 2013, and taken to a cardiac clinic in November 2013. And 

Jiau does not provide evidence to support her contention that the cardiology 

consultation was delayed or that Warden Tews was involved in any delay. 

Moreover, Warden Tews’ “reasonabl[e] reli[ance] on the expertise of the 

prison’s medical staff” does not amount to acting with deliberate indifference. 

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1084 (9th Cir. 2013). Jiau 

was prescribed Diltiazem by a prison nurse. And prison medical staff did not 

express concerns about any work limitations related to Jiau’s work assignment.

Finally, Jiau argues that Warden Tews acted indifferently toward her medical 

needs by failing to place her in a residential reentry center. But Jiau does not 

provide any evidence demonstrating that she would have been eligible for 

additional medical care in a residential reentry center placement and does not 

contest evidence provided by Warden Tews that residents of residential reentry 

centers were required to be medically stable. 

Jiau’s request for appointment of pro bono counsel, set forth in the opening 

brief, is denied.

AFFIRMED.