Unpublished Disposition, 872 F.2d 429 (9th Cir. 1988)

MEMORANDUM^** 

Ronald R. Norwood appeals from the district court's order granting summary judgment to defendants Jim Miller, the sheriff of Elko County, and Melinda Borden, a Sheriff's Office sergeant assigned to the Elko County Jail ("Jail"). Norwood filed a Sec. 1983 action, alleging that unsanitary conditions and the denial of medical treatment during his stay at the Jail constituted cruel and unusual punishment in violation of his constitutional rights under the Eighth and Fourteenth Amendments. This court has jurisdiction pursuant to 28 U.S.C. 1291 and we affirm.

FACTUAL BACKGROUND

In August, 1986, Norwood, an inmate confined at the Nevada State Prison, filed a pro se Sec. 1983 complaint, claiming that his constitutional rights had been violated by Elko County Jail personnel. Norwood had been temporarily housed at the Jail between May 27, 1986, and June 6, 1986, in order to testify as a witness in a criminal trial. On July 20, 1987, after the close of discovery, the defendants moved for summary judgment. The defendants' motion was supported by the defendants' sworn affidavits, by deposition testimony, and by answers to interrogatories. Norwood's opposition to the motion was not supported by any evidence, but instead rested upon the allegations of his complaint. The district court granted summary judgment for the defendants on March 3, 1988.

ANALYSIS

In his complaint, Norwood alleged that the conditions at the Jail were unsanitary. He contended that his shower and toilet were filthy, that he was not given a pillow or sheets, and that the mattress and blankets given to him were filthy. Norwood alleged that these conditions caused him to develop a skin rash on his chest and genitals and to develop athlete's foot. Norwood further alleged that he was denied medical treatment for these conditions while he was at the Jail.

The Jail was entitled to judgment as a matter of law on Norwood's denial of medical treatment claim. A claim under Sec. 1983 for denial of medical care is not actionable unless the plaintiff can establish gross negligence or thoughtless disregard to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976). Norwood failed to show that his medical conditions were serious. In answer to interrogatories propounded by defendants, Norwood admitted that the conditions of which he complained did not have any long term effects. He was treated at the state prison for both the skin rash and the athlete's foot. The prison physician gave him a slave which cleared up the skin rash and a can of foot powder which cured the athlete's foot. In his deposition, the prison physician stated that both conditions are common at the state prison and that neither condition is serious.

Thus, Norwood failed to state a cause of action for the denial of medical treatment. There were no issues of material fact to be tried, since the facts presented by the defendants were not disputed by Norwood. Indeed, the defendants relied upon facts supplied by Norwood himself. Therefore, the district court's grant of summary judgment to the defendants on this claim was correct.

Summary judgment was also properly granted on Norwood's claim that the living conditions at the jail constituted cruel and unusual punishment, because Norwood failed to raise any issue of triable fact on this claim. In support of their motion for summary judgment, the defendants disclosed the cleaning practices at the Jail. In sworn affidavits, answers to interrogatories, and copies of the Jail's procedures, the defendants set forth specific facts which refuted Norwood's allegations that the bedding, toilets, and showers at the Jail were filthy. This evidence stated that the mattress was standard issue which was cleaned prior to being assigned to each new prisoner, and that the bedding was cleaned twice a week. The evidence also showed that each prisoner was given cleaning supplies to disinfect his toilet and shower. In his answers to interrogatories propounded by the defendants, Norwood admitted that the defendants placed buckets of cleaning solution in his cell and that he never attempted to clean the toilet or shower.

Norwood's opposition to the motion for summary judgment did not back up any of his allegations about the unsanitary conditions at the Jail with any evidence. On appeal, Norwood claims that he was under no duty to support his opposition to the motion with affidavits or similar materials and that his pleadings were sufficient to raise genuine issues of material fact. However, once the party moving for summary judgment has shown by documents supporting its motion that no genuine issue of fact exists, the party opposing the motion may not rest upon allegations in his pleadings to defeat the motion. Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1544 (9th Cir. 1988); Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, (9th Cir. 1985) (nonmoving party cannot rest on the hope of disproving the moving party's evidence at trial); Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (involving a pro se litigant). Rule 56, which is erroneously relied upon by Norwood to argue that the allegations in his complaint were sufficient to withstand the motion, provides that " [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) ("Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves ...").

Norwood could not rest upon the allegations in his pleadings to defeat the defendants' motion for summary judgment. He failed to raise a material issue of fact on either of his claims. Therefore, summary judgment was proper.

AFFIRMED.