Unpublished Disposition, 855 F.2d 862 (9th Cir. 1985)

MEMORANDUM^** 

Asmar Habeeb-Ullah Saleem, a/k/a Clarence Eugene Jones, pro se, appeals the district court's grant of summary judgment in favor of the defendants in his action seeking damages and declaratory and injunctive relief under 42 U.S.C. §§ 1983, 1985(3) and 1986.¹  Saleem contends that the district court erred because (1) it improperly applied the deliberate indifference to serious medical needs test to the defendants' refusal to perform a hernia operation; (2) it denied his conspiracy claim; (3) it improperly considered prison nurse Margaret Wall's affidavit and attachments; (4) it enforced a local rule denying him leave to file additional interrogatories. We affirm.

Saleem entered the Oregon State Penitentiary on January 26, 1982. Saleem had been diagnosed with a hernia prior to his incarceration while in the Multnomah County jail as a pretrial detainee.²  At the initial penitentiary medical examinations, Doctors Harwood and DiIaconi found only a tender node in Saleem's intestinal area, but no hernia. Saleem was later reexamined because he was having difficulty performing his assigned work in the kitchen. On February 24, 1982, Dr. DiIaconi diagnosed Saleem to have a hernia. Dr. DiIaconi told Saleem that elective surgery was not being performed because of budgetary constraints, and because his condition was not life-threatening. Dr. DiIaconi also stated that Saleem would have to obtain permission from Prison Superintendent Cupp to have the surgery. The next day Saleem was given light duty status because of his medical condition. Saleem was subsequently placed on a list of inmates who requested scheduling for elective surgery. Saleem was finally scheduled for surgery in January, 1985, but declined the surgery the day before it was scheduled.

Saleem filed an amended complaint on January 7, 1985. In his amended complaint Saleem alleged that he was subjected to cruel and unusual punishment, and was denied equal protection and due process because of the failure of the defendants to treat his hernia adequately and promptly. In addition, Saleem requested injunctive and declaratory relief, and sought pendent jurisdiction over a state malpractice claim. Saleem next moved for enlargement of interrogatories due to pendent state malpractice claim. The district court denied his motion.

The defendants filed a motion for summary judgment on February 19, 1985, stating that (1) they had responded to Saleem's medical needs in an appropriate manner; (2) surgery was not necessary to treat Saleem's hernia, and he had been prescribed medication; (3) Saleem had been given light duty to avoid any possibility of furthering his injury; and (4) Saleem had failed to keep a number of appointments with the prison doctor, had not complained about the hernia since 1982 and had refused surgery when it was finally scheduled. Attached to the motion was the affidavit of Margaret Wall, a nurse at the prison, describing Saleem's medical records and medical file.

On September 18, 1985, the district court magistrate recommended that summary judgment should be granted in favor of the defendants, that Saleem's motions to strike certain exhibits should be denied, and that Saleem's motions for discovery should be denied as moot. The magistrate found that the record did not support Saleem's contention that prison doctors had been deliberately indifferent to Saleem's medical condition. The findings and recommendations were adopted by the district court and summary judgment was entered. Saleem timely appeals.

This court reviews de novo the district court's grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). This court must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). In "reviewing a grant of summary judgment, this court sits in the same position as the district court and applies the same summary judgment test that governs the district court's decision." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractor's Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

Saleem contends that the district court erred in granting summary judgment to the defendants. To prevail on a section 1983 claim and to implicate the Eighth Amendment right to be free from cruel and unusual punishment, a prisoner must prove that the defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Franklin v. Oregon State Welfare Division, 662 F.2d 1337, 1344 (9th Cir. 1981).³  Mere "indifference," "negligence," or "medical malpractice" will not support a cause of action. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980). In addition, a difference of opinion between a prisoner-patient and prison doctors about treatment does not provide a basis for a section 1983 claim. Franklin, 662 F.2d at 1344.

Here, Saleem has failed to set forth specific facts supporting his claim that the denial of his elective surgery was the result of deliberate indifference to his medical needs. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial). The record establishes that the prison medical staff examined Saleem on numerous occasions; his hernia was never diagnosed as serious or requiring emergency surgery; Saleem was prescribed medication and treatment for the hernia and was placed on "light duty;" he was placed on the waiting list for elective surgery, yet declined the surgery the day before it was scheduled; and he made no new complaints about the hernia between late 1982 and his scheduled surgery in early 1985. We find that these circumstances support the district court's grant of summary judgment. Unlike Saleem's earlier action, Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), which had been dismissed by the district court for failure to state a claim rather than upon a motion for a summary judgment, the record here does not reflect that hernia surgery was necessary, and the record also establishes an ample explanation for the denial of the surgery other than simple budgetary constraints. Cf. Jones, 781 F.2d at 771. The medical staff did not fail to respond to Saleem's medical complaints, nor did it deny him necessary surgery. The district court did not err in granting summary judgment of Saleem's section 1983 claim.

Saleem contends that the district court also erred in granting summary judgment to the appellees on the remaining issues raised in his action. In his complaint, Saleem alleges a conspiracy to violate his right to equal protection under the law. To prevail on this claim under 42 U.S.C. § 1985(3), Saleem must prove that a conspiracy existed that was motivated by a racial or otherwise invidiously discriminatory animus. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

Saleem does not produce any facts supporting his claim that he did not receive surgery because of a conspiracy. See Berg, 794 F.2d at 459 (party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial). Accordingly, the grant of summary judgment on the conspiracy allegations is affirmed. Fed. R. Civ. P. 56; Aldabe, 616 F.2d at 1092.

Saleem contends that the district court erred in considering Margaret Wall's affidavit and attachments because they were not based on her personal knowledge. This contention is without merit.

Evidentiary rulings are reviewed for an abuse of discretion and will not be reversed absent some prejudice. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986). The defendants attached to the motion for summary judgment a copy of Saleem's medical record and the affidavit of Margaret Wall, a nurse on the prison staff. Wall's affidavit summarized Saleem's medical history at the prison, and state prison policy on elective surgeries and hearings. Wall's affidavit was made under oath, and it stated that the attachment was " [a] copy of the complete medical file maintained at this facility for inmate Clarence E. Jones." This complied with the requirement of Fed. R. Civ. P. 56(e) that a sworn statement of the authenticity of the documents referred to in the affidavit be attached. See 6 J. Moore, Federal Practice p 56.22 at 56-1328 (2d ed. 1987).⁴  Because Saleem has not shown any legal error or prejudice by the admission of the affidavit and attached medical records, it was not an abuse of discretion to admit them. See Kisor, 783 F.2d at 1340.

Saleem contends that the district court erred by refusing Saleem's request for additional interrogatories. Whether the district court erred in limiting discovery is reviewed for an abuse of discretion. United States v. National Medical Enter., Inc., 792 F.2d 906, 910 (9th Cir. 1986). A local rule of the District of Oregon provides:

Unless otherwise permitted by the court, or by stipulation, no party shall serve more than twenty (20) interrogatories, including subparts.

Dist.Ct.L.R. 230-1(a) (D. Or.) . Although Fed. R. Civ. P. 33 does not limit the number of interrogatories, it does not prohibit a local rule establishing a limit, subject to increase.⁵ 

Saleem petitioned the court for enlargement of the number of interrogatories beyond twenty, citing the pendent state malpractice claim as the reason for enlargement. However, Saleem failed to articulate any specific reason why the pendent state claims required an enlargement of interrogatories. It was not an abuse of discretion for the district court to deny Saleem's motion for enlargement of interrogatories. See National Medical Enter., 792 F.2d at 910.

The district court's judgment is AFFIRMED.