Ernest Dean v. Dravis

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ERNEST LEE DEAN, No. 21-35447 Plaintiff-Appellant, D.C. No. 2:19-cv-02050-JR v. MEMORANDUM* DRAVIS; et al., Defendants-Appellees, and SNAKE RIVER CORRECTIONAL INSTITUION; OREGON DEPARTMENT OF CORRECTIONS, Defendants. Appeal from the United States District Court for the District of Oregon Jolie A. Russo, Magistrate Judge, Presiding** Submitted January 18, 2023*** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GRABER, PAEZ, and NGUYEN, Circuit Judges. Oregon state prisoner Ernest Lee Dean appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Toguchi Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We affirm. The district court properly granted summary judgment for Dr. Gulick because Dean failed to raise a genuine dispute of material fact as to whether Dr. Gulick was deliberately indifferent to Dean’s chronic degenerative disc disease. See Toguchi, 391 F.3d at 1057-60 (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health; medical malpractice or negligence does not amount to deliberate indifference). The district court properly dismissed Dean’s claims against the Oregon Department of Corrections and Snake River Correctional Institution as barred under the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”); Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 988 (9th 2 21-35447 Cir. 2014) (dismissing claims against the Oregon Department of Corrections under the Eleventh Amendment). AFFIRMED. 3 21-35447