Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1987)

MEMORANDUM^* 

Patrick Zanzucchi appeals a summary judgment in his action against Allan Weinberg and Roger Glas, federal prison physician's assistants, and Anne Moore, a nurse practitioner. Zanzucchi alleged that the defendants' treatment of his medical complaints violated his eighth amendment rights. We affirm.

Zanzucchi was incarcerated at FCI-Phoenix from July 2, 1986, through August 26, 1986. On his second day there he complained of lower back pain. Physician's assistant Allan Weinberg examined Zanzucchi, determined that he was experiencing muscle spasms, and furnished him with analgesics. Zanzucchi continued to see non-physician personnel, including defendants Glas and Moore, complaining of back pains. His symptoms were treated with analgesics, prescription drugs, and occasional heat therapy at the hospital.

On July 29, 1986, and again on August 1, 1986, Dr. Stephen Dutch examined Zanzucchi and concluded that he had ruptured a spinal disc and required surgery. Zanzucchi was transported from FCI-Phoenix to the Medical Center for Federal Prisoners in Rochester, Minnesota, where he underwent surgery for a spinal herniation on September 15, 1986.

The motion for summary judgment was combined with a motion to dismiss for failure to state a claim upon which relief could be granted. Defendants also asserted that they were entitled to qualified immunity from the allegations of constitutional deprivation. The court granted the Fed. R. Civ. P. 12(b) (6) motion, finding that Zanzucchi had failed to state a colorable claim under the Eighth Amendment, and dismissed the action with leave to amend within thirty days of the order.

Zanzucchi next filed a motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e). He later filed a motion for leave to file an amended complaint. After his motions were denied, he filed this appeal.

Zanzucchi alleges that the defendants' response to his back complaints constituted "deliberate indifference to [his] medical needs" proscribed under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

In Estelle v. Gamble, the Supreme Court held that the government has a duty to provide medical care to those whom it imprisons. 429 U.S. at 103. A claim under the Eighth Amendment arises when prison officials exhibit deliberate indifference to serious medical needs of those incarcerated through delay, denial, or other interference with necessary medical care. Id. at 104-5. Mere negligence in the diagnosis or treatment of a medical condition, without more, is insufficient to support a claim of deliberate medical indifference. Id. at 106.

Zanzucchi received analgesics and heat treatment for the back pain he complained of the day after he arrived at the prison and underwent surgery for his spinal herniation on September 15, 1986. There was a six-week period between Dr. Dutch's determination that Zanzucchi required surgery and the performance of the operation (ER at 49), but there is no evidence that the delay appreciably exacerbated Zanzucchi's condition. Under these circumstances we find no error in the district court's dismissal of Zanzucchi's complaint.

Zanzucchi also alleges that the district court erred in denying him additional discovery prior to its ruling on the motion for summary judgment. Appellees filed a motion for summary judgment on April 20, 1987. From March through May of 1987 Zanzucchi made several requests for discovery under Fed. R. Civ. P. 33, 34, and 36. On June 3, 1987, defendants filed a motion for a stay of discovery, pursuant to the qualified immunity issue, which the court granted a week later pending its ruling on the summary judgment motion.

We review a district court's order staying discovery under an abuse of discretion standard. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1416-17 (9th Cir. 1987). Judge Broomfield based his denial of appellant's discovery request upon the Supreme Court's holding in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that discovery should not be allowed in cases where a defense of qualified immunity is raised " [u]ntil th [e] threshold immunity question is resolved." Id. at 818. See also Anderson v. Creighton, 107 S. Ct. 3034, 3042 n. 6 (1986). Although Judge Broomfield subsequently granted defendants' motion for summary judgment based upon the complaint's failure to state a claim under the Eighth Amendment and not upon the qualified immunity defense, we find no abuse of discretion in the stay of discovery pending a ruling on the summary judgment motion.

CONCLUSION

The record of Zanzucchi's treatment during the period of his incarceration at FCI-Phoenix does not reveal a violation of his eighth amendment rights at the hands of the defendants. The district court properly stayed discovery pending its ruling on the summary judgment motion and did not err in dismissing appellant's complaint for failure to state a claim upon which relief could be granted. We find no merit in the remainder of appellant's contentions.

AFFIRMED.