Raymond Whitall v. Stephanie Phan

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAYMOND RICHARD WHITALL, No. 21-16463 Plaintiff-Appellant, D.C. No. 3:17-cv-05889-CRB v. MEMORANDUM* STEPHANIE TRAN PHAN, M.D., Primary Care Physician, CDC and Rehabilitation; A. NEWTON, Supervising R.N. II, Salinas Valley State Prison; MS. DOWLESS, Public Health Nurse, Salinas Valley State Prison; LIZ DOEHRING, N.P.C. TTA Nurse Practitioner, Salinas Valley State Prison; LAW SAN FU, M.D., Physician and Surgeon, Salinas Valley State Prison; LAWRENCE GAMBOA, M.D., Chief Physician and Surgeon, Salinas Valley State Prison; WILSON, Dr., Chief Nurse Executive, Salinas Valley State Prison; KIM KUMAR, M.D., Chief Medical Executive, Salinas Valley State Prison; ELAINE CANTU, Acting Chief Executive Officer, Salinas Valley State Prison; B. BRIZENDINE, Psy. D., MBA, CCHP, Chief Executive Officer, Salinas Valley State Prison; ROGER L. MARTINEZ, Correctional Lieutenant, Salinas Valley State Prison; GONZALEZ, Correctional Captain, SVSP Health Care Services, Salinas Valley State Prison; W. L. MUNIZ, Warden, Salinas * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Valley State Prison; KATHLEEN ALLISON, Director, CDC and Rehabilitation; N. WALKER, Associate Warden; J. LEWIS, Deputy Director, Policy and Risk Management, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Submitted July 5, 2023** Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges. Raymond Richard Whitall, a California state prisoner, appeals pro se from the district court’s summary judgment for defendants 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, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm. The district court properly granted summary judgment to defendants because Whitall failed to raise a genuine dispute of material fact as to whether the treatment for his arthritis “was medically unacceptable under the circumstances and was chosen in conscious disregard of an excessive risk to [his] health.” Id. at 1058 ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 (explaining that a difference of medical opinion is insufficient, as a matter of law, to establish deliberate indifference) (citation and internal quotation omitted). On appeal, Whitall argues that he has raised several disputes of material fact, and that the question of whether his treatment was medically unacceptable should be presented to a jury. However, Whithall has not presented evidence that Phan’s treatment was medically unacceptable, and so summary judgment for the defendants was appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (plaintiff’s complete failure of proof concerning an essential element of his case necessarily renders all other facts immaterial). AFFIRMED. 3