Jesus T. Evangelista, Plaintiff-appellant, v. Larry Kincheloe; et al., Defendants-appellees, 19 F.3d 1440 (9th Cir. 1994)

MEMORANDUM^** 

Jesus Evangelista, a Washington state prisoner, appeals pro se the district court's summary judgment in favor of defendant prison officials in Evangelista's 42 U.S.C. § 1983 action alleging that he was sexually assaulted during his hemorrhoid operation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir. 1992), and affirm.

A grant of summary judgment should be affirmed only if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989). There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion. Taylor, 880 F.2d at 1045. Conclusory allegations unsupported by factual data are insufficient to defeat a summary judgment motion. Id.

In support of their summary judgment motion, defendants submitted the affidavits of several of the doctors and nurses who were present at Evangelista's surgery, the medical records from Evangelista's surgery and recovery period, and a Walla Walla police department incident report. The evidence submitted shows that Evangelista's surgery was performed in accordance with standard medical procedures, and that his recovery period included the expected range of side effects and symptoms.

In his opposition to the defendants' summary judgment motion, Evangelista failed to present any evidence to support his claim of sexual assault. Rather, he asserted only that the defendants are withholding a videotape of the operation that conclusively proves that the assault took place. Evangelista has failed, however, to present any evidence to support his contention that the videotape exists. Because conclusory allegations are insufficient to defeat a summary judgment motion, and because there is nothing in the record to indicate that Evangelista was sexually assaulted during his surgery, the district court properly granted summary judgment in favor of defendants. See Taylor, 880 F.2d at 1045.

AFFIRMED.