Unpublished Disposition, 865 F.2d 265 (9th Cir. 1985)

MEMORANDUM^** 

The district court granted defendants' motion to dismiss Sivak's section 1983 action following a court trial in which Sivak, an inmate at the Idaho State Correctional Institution (ISCI), presented evidence in support of his claims of cruel and unusual punishment (deliberate indifference to serious medical needs) and deprivation of personal property without due process of law. The court granted a motion to dismiss under Fed. R. Civ. P. 41(b)¹  after making written findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). The court found that Sivak had failed to present evidence showing that he had been subjected to cruel and unusual punishment during the time period in question. The court further found that Sivak had failed to establish his claim of deprivation of property without due process. In the course of the trial, the court also denied Sivak's request to subpoena certain witnesses because Sivak was unable to satisfy the court that the requested witnesses would provide relevant testimony.² 

Sivak appeals the trial court's dismissal of his section 1983 action. He argues that the court erred in denying his request to subpoena witnesses, and he challenges the district court's factual findings. We affirm.

This court reviews the facts found by the trial court under the clearly erroneous standard. Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985). We review the trial court's ultimate conclusion de novo. Id. at 1465. Involuntary dismissal under Fed. R. Civ. P. 41(b) is reversed only if the findings of fact are clearly erroneous or are insufficient to support the court's legal conclusion that the plaintiff has shown no right to relief. Childs v. Local 18, International Brotherhood of Electrical Workers, 719 F.2d 1379, 1383 (9th Cir. 1983).

Deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 182-83 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). Deliberate indifference to a prisoner's serious illness or injury states a cause of action under section 1983. Id. at 105. However, an inadvertent or negligent failure to provide adequate medical care does not state a valid claim of medical mistreatment under the Eighth Amendment. Id. at 105-06.

Sivak alleged that while on "death watch," beginning January 17, 1985 and ending six days later, he had serious medical problems which defendants deliberately ignored. He also alleged that he had been denied the opportunity to make complaints or requests regarding his medical needs. At trial, however, witnesses testified that Sivak had in fact made several requests for medical assistance during this time, and had received adequate hygiene and medical care. Because Sivak refused to testify on his own behalf at trial, and failed to present any controverting testimony,³  the court had no evidence before it that any substantial medical problem was ignored or mistreated. C.R. 47 at 3. The court therefore rejected Sivak's claim of cruel and unusual punishment.

The court's finding that defendants did not ignore Sivak's medical needs is not clearly erroneous. Our review of the record does not reveal any instance in which Sivak's medical needs were neglected. We therefore affirm the district court's dismissal of this claim.

Sivak alleged that defendants violated his Fourteenth Amendment right to have no property taken from him without due process. He alleged that while on death watch, certain personal items were taken from him and never returned. However, Sivak did not testify and the court had no evidence before it on this issue. The district court therefore properly dismissed this claim under Rule 41(b).

Sivak moved to have the court subpoena additional witnesses to testify and produce documents in support of his claims. The trial court requested a written statement from Sivak stating the names of the witnesses and what Sivak expected them to testify to. At trial, the court refused to subpoena these witnesses, ruling that Sivak had failed to establish that the desired witnesses would be able to offer relevant testimony. R.T. Vol. 2, at 13.

Based on our review of the record, in particular the transcript of the trial, we cannot conclude that the district court abused its discretion in denying Sivak's motion to subpoena additional witnesses. Sivak was unable to explain how the witnesses he sought would contribute testimony relevant to the two issues being adjudicated. The district court could properly conclude that Sivak was "just on a search to see whether [he could] find somebody that will say something [helpful to his case]." R.T. Vol. 2, at 108-09.

AFFIRMED.