Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Owens-El appeals the district court's summary judgment for defendant-appellee United States. The gravamen of appellant's complaint is that federal prison officials failed to treat his medical condition while a prisoner at the Federal Correctional Institution at Terminal Island, California. Appellant claims that this failure constituted a deprivation of his constitutional rights under the Eighth and Fourteenth Amendments to the Constitution. We conclude that appellant failed to make the evidentiary showings necessary to survive appellee's summary judgment motion, and thus affirm the grant of summary judgment.

We review de novo a district court's grant of summary judgment. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In opposing the summary judgment motion, the non-moving party may not rest on conclusory allegations, but rather must set forth facts showing that there exists a genuine issue for trial. Id. (citing Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986)).

Appellant asserted in his complaint that he suffered "deliberate indifference to serious medical needs [and] interference with planned medical treatment that had been otherwise secured [by order of a federal court.]" Plaintiff's Complaint, Clerk's Record ("CR") 1 at 3. This language was evidently taken from the Supreme Court case of Estelle v. Gamble, 429 U.S. 97, 104, 105 (1976), reh'g denied, 429 U.S. 1066 (1977). Estelle held that in order for insufficient or inappropriate prisoner medical care to violate the Eighth Amendment, there must be a "deliberate indifference to serious medical needs of prisoners." 429 U.S. at 104. The Court explained that this standard could be reached in either of two ways: when prison officials deny, delay or intentionally interfere with medical treatment; or through the method in which prison physicians provide medical care. Id. at 104-05. Mere negligence in diagnosing or treating a medical condition does not fulfill the second prong of this test. Id. at 106.

We find that appellant provides insufficient evidence to create a genuine issue of material fact regarding this claim, when appellee's proffered evidence is taken into account. On the first prong of his Estelle claim, appellant provides only conclusory allegations of interference with medical treatment, in opposition to appellee's proffered affidavit from Dr. Valles, a physician employed by the Bureau of Prisons, and the documentary evidence of other BOP employees. Dr. Valles' affidavit asserts that appellant's medical condition could potentially be ameliorated by "proper self-application of prescribed ointment, creams and [appellant's] self-control in refraining from scratching the affected areas." Valles affidavit, CR 16 at 12 p 10. Declarations by five BOP employees (CR 16 at 8-10, 13, 48), prison medical records (CR 16), as well as appellant's own admissions (e.g., CR 1 at 9, Traverse CR 20 at 3-6) demonstrate that appellant received ointments or lotions for his feet at Terminal Island and other prisons. The only reasonable interpretation of this evidence is that during appellant's tenure at Terminal Island, appellant was being adequately treated for his condition. Appellant offers no counterbalance to this evidence except his own statements that prison officials withheld adequate treatment from him while he was at Terminal Island. See, e.g., Plaintiff's Affidavit in Support of Traverse, CR 20 at 2-3. Drawing all reasonable inferences in favor of appellant, this evidence alone is not enough to raise a genuine fact issue as to whether appellee denied, delayed or intentionally interfered with appellant's medical treatment.

Similarly, we conclude that appellant has failed even to "set forth facts showing that there is a genuine issue for trial" on whether appellant's medical care was negligent, let alone on whether appellant's care was sufficiently deficient to constitute a violation of the second prong of Estelle. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). Contrary to the requirements of California law,¹  appellant provides no expert testimony that the diagnosis and treatment of his condition fell below the standard of care of the relevant community. In addition, the only reasonable reading of Dr. Valles' affidavit is that an adequate treatment for appellant's condition was administered during his stay at Terminal Island. Appellant's failure to "make a showing sufficient to establish the existence of an element which is essential to his case and for which he would bear the burden of proof at trial" requires the conclusion that summary judgment was appropriate. Hutchinson, 838 F.2d at 393 (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).² 

AFFIRMED.