Unpublished Disposition, 890 F.2d 420 (9th Cir. 1989)

MEMORANDUM^** 

L. J. Curtis, a federal prisoner, appeals pro se the district court's order granting summary judgment against him in his civil rights action against various prison officials and personnel for deliberate indifference to his serious medical needs. Curtis claims that the district court erred in granting summary judgment in favor of the federal defendants and that it was an abuse of the district court's discretion to dismiss the suit without prejudice with respect to defendant Kazan pursuant to Fed. R. Civ. P. 4(j). For the reasons that follow, we affirm.

Summary Judgment in Favor of the Federal Defendants

We review de novo a grant of summary judgment. Ferguson v. Greater Pocatello Chamber of Commerce, 848 F.2d 976, 979 (9th Cir. 1988). "Summary judgment is appropriate if the moving party presents evidence that shows that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Once the moving party has met this initial burden, the nonmoving party has the subsequent burden of presenting significant probative evidence tending to support its claim that material, triable issues of fact remain." Id. (citations omitted).

Curtis contends that a genuine issue of material fact exists as to whether prison officials were deliberately indifferent to his serious medical needs, thereby violating the eighth amendment of the United States Constitution. "Prisoners can establish an eighth amendment violation with respect to medical care if they can prove there has been deliberate indifference to their serious medical needs." Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The gravamen of Curtis' complaint is that the absence of an "eye cup" in the prison hospital inhibited removal of debris from his left eye, thereby resulting in daily pain for a four month period.

Viewing the evidence in a light most favorable to Curtis, it is apparent that he suffered from a serious injury. He stepped into a 3/8 inch diameter wire hook which punctured his left cheek and damaged his left eye. Moreover, foreign debris was found in Curtis' eye some four months after his initial injury and examination. This, however, does not amount to a deliberate indifference to his serious medical needs. The record shows that Curtis was seen by prison medical personnel at least thirty times after his injury between 1984 and 1986.¹  Curtis was not denied access to any medical care. He received substantial treatment for his injury; however, he now appears to be unsatisfied with the treatment he received and claims that he should have been taken to a local hospital emergency room at the time of his injury.

These circumstances do not rise to the magnitude of the constitutional violations which Curtis alleges. There was no deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment"); cf. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam) ("mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference").

Curtis suggests that Dr. Mueller's affidavit should be accorded less deference because Mueller is only an ordinary medical doctor and not an opthalmologist. Once the moving party, however, has set forth sufficient facts by way of affidavit to meet its burden, the nonmovant then has the burden to demonstrate that genuine triable and material issues of fact remain. Ferguson, 848 F.2d at 979. The only affidavit presented in support of Curtis' opposition to the summary judgment motion was his own. Curtis himself does not purport to be an opthalmologist, nor did he present any supporting affidavits of any other doctors, although he could have done so.²  No material issues of fact remained. The defendants met their burden. Curtis did not. His claim, therefore, fails as to all defendants.

Dismissal of Dr. Kazan

Curtis seems to claim that it was error for the district court to dismiss the action without prejudice against defendant Kazan pursuant to Fed. R. Civ. P. 4(j), for failure to serve Kazan with a summons and complaint. A dismissal pursuant to Rule 4(j) is reviewed for an abuse of discretion. Whale v. United States, 792 F.2d 951, 952 (9th Cir. 1986); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir. 1985). There was no abuse of discretion here.

The Rule, in pertinent part, provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

Fed. R. Civ. P. 4(j).

The record shows that service was ordered on all defendants. Defendant Kazan, however, was not served. Upon the federal defendants' motion, of which Curtis had notice, the court dismissed the action against Kazan without prejudice. Curtis made no opposition to this motion in any of his papers in the court below and there was no suggestion of any "good cause" which would preclude dismissal against Kazan. Accordingly, the district court did not abuse its discretion.

The defendants also raise a jurisdictional issue by reference to an argument made in their moving papers in the court below. "Parties must not append or incorporate by reference briefs submitted to the district court or agency, or refer this Court to such briefs for their arguments on the merits of the appeal." 9th Cir.R. 28-3.2. We may, however, consider issues of subject matter jurisdiction sua sponte. See, e.g., Fed. R. Civ. P. 12(h) (3). Upon review of the pleadings contained in the record, we are not convinced of any jurisdictional infirmities.

AFFIRMED.