Unpublished Disposition, 911 F.2d 740 (9th Cir. 1990)

MEMORANDUM^** 

Alton Bea Whatley, Jr., a California state prisoner, appeals pro se the district court's order granting summary judgment in favor of defendants-appellees in his 42 U.S.C. § 1983 action against Sacramento County, corrections officer Lt. Wayne Mahan, and prison social worker Phillip E. Caine. Whatley contends that the appellees were deliberately indifferent to his medical needs by failing to provide an opthalmologist to examine his eye after he was injured when another inmate poured scalding coffee on him. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review de novo the district court's grant of summary judgment. Thompson v. City of Los Angeles, 885 F.2d 1439, 1442 (9th Cir. 1989). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether genuine issues of material fact exist, and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an essential element of his case and on which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

* Prison officials violate a prisoner's civil rights if they are deliberately indifferent to the prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-06 (1976); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).¹  The indifference must be substantial; inadequate treatment due to negligence or inadvertence, see Estelle, 429 U.S. at 105-06, or differences of opinion between inmate and prison medical officials, see Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), does not constitute deliberate indifference.

The record reveals that Whatley received treatment for his eye in the prison infirmary immediately after his alleged injury occurred. In support of their motion for summary judgment, appellees provided evidence that Whatley's eye condition was not serious and that, at most, he needed glasses. Dr. Brown, the prison physician, determined that Whatley's problem did not constitute a serious medical need. Appellees explained that county health policy allowed inmates the services of any eye specialist at county expense only when the prison physician diagnosed the inmate's eye condition as a serious medical need.

Whatley's only dispute is that Dr. Brown and the other prison medical personnel lack the expertise properly to examine and treat his eye. In essence, Whatley disagrees with Dr. Brown's diagnosis that his eye condition is not serious. Thus, Whatley's dispute merely constitutes a difference in opinion, and does not raise a genuine issue of material fact as to whether Mahan and Caine were deliberately indifferent to his medical needs. See Sanchez, 891 F.2d at 242.

A claim of municipal liability requires a showing that the individual defendants' alleged unconstitutional action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the [municipality's] officers." Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978); Palmerin v. City of Riverside, 794 F.2d 1409, 1414 (9th Cir. 1986). However, where, as here, the individual defendants' actions are not unconstitutional, there can be no municipal liability. See Palmerin, 794 F.2d at 1415.

Accordingly, Sacramento County also was entitled to a judgment as a matter of law. See id.

We therefore find that the district court did not err in granting summary judgment for the defendants-appellees.

II

Whatley also contends that the district court erred in denying him a jury trial. This contention lacks merit. Whatley failed to raise any genuine issues of material fact which required resolution by a jury. Therefore, the district court did not err in not holding a jury trial. See Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985) (per curiam).

AFFIRMED.