Unpublished Disposition, 874 F.2d 816 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 816 (9th Cir. 1987)

David Allen MANN, Plaintiff-Appellant,v.Thomas BEATY, CMA at ASPC-F, in his personal/officialcapacity, Ted Jolly, Medical Director at ASPC-F, in hispersonal/official capacity, Joseph Scalzo, ADC MedicalDirector at ASPC-F, in his personal/official capacity,Samuel Lewis, Director at ADOC, in his personal/officialcapacity, Defendants-Appellees.

No. 87-15038.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 22, 1989.* Decided May 5, 1989.

Paul G. Rosenblatt, District Judge, Presiding.

Before BARNES, WALLACE and SKOPIL, Circuit Judges.


Memorandum** 

David Allen Mann, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of prison officials in Mann's 42 U.S.C. § 1983 action. We affirm.

On August 28, 1986, Mann slipped and fell on the stairs at the Arizona State Prison. He struck his jaw on the banister causing the jaw to become swollen shortly thereafter. The following morning (approximately twelve hours later), Mann reported to Thomas Beaty, the Correctional Medical Assistant, and requested medical care. Beaty placed Mann's name on the dental list, advising him that the dental services people schedule their own appointments and that they would see him as soon as they could. Mann saw the dentist on September 3, 1986, and was treated for a swollen jaw and a fractured tooth. An x-ray and clinical examination revealed that the jaw had been neither fractured nor dislocated. A follow-up examination was scheduled for one week later, at which time the dentist decided to begin root canal treatment. The treatment was completed on September 23, 1986, and Mann did not return to the dental office after that date.

On September 5, 1986, Mann filed a civil rights action in the federal district court for the District of Arizona. Mann alleged that Beaty and other prison officials1  violated his constitutional rights by failing to provide him with adequate dental treatment.2  On November 25, 1986, the defendants moved to dismiss Mann's complaint pursuant to Fed. R. Civ. P. 12(b) (6) and 56. On December 1, 1986, the magistrate ordered that the motion be treated as one for summary judgment pursuant to Fed. R. Civ. P. 56, and advised Mann of the Rule 56 requirements. On November 18, 1987, the district court granted defendants' motion for summary judgment and dismissed the action.

We review a district court's grant of summary judgment de novo. Hunt v. Dental Dep't., 865 F.2d 198, 200 (9th Cir. 1989). Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). The party opposing summary judgment cannot rest on conclusory allegations but must set forth specific facts showing that there is a genuine issue for trial. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).

Prisoners can establish an Eighth Amendment violation with respect to medical care if they can prove there has been deliberate indifference to their serious medical needs. Hunt, 865 F.2d at 200. Deliberate indifference involves more than mere negligence; it "involves the 'unnecessary and wanton infliction of pain.' " Wood v. Sunn, 865 F.2d 982, 989 (9th Cir. 1989) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Prison officials are deliberately indifferent to a prisoner's serious medical needs where they "deny, delay or intentionally interfere with medical treatment." Hutchinson, 838 F.2d at 394. "Isolated occurrences of neglect do not amount to deliberate indifference." Wood, 865 F.2d at 989.

" [T]he eighth amendment requires that prisoners be provided with a system of ready access to adequate dental care." Hunt, 865 F.2d at 200. Mere delay in providing a prisoner with dental treatment, without more, does not amount to an Eighth Amendment violation. Id. The delay must have been harmful. See Shapley v. Nevada Bd. of State Prison Comm'rs., 766 F.2d 404, 407 (9th Cir. 1985). Thus, an Eighth Amendment claim can be stated based on facts that prison officials were aware that a dental problem was causing a prisoner severe pain and denied the prisoner's repeated requests for treatment. Hunt, 865 F.2d at 200-201.

In deciding whether there is deliberate indifference to an inmate's serious medical needs, federal courts need not defer to the judgment of prison doctors or administrators. Wood, 865 F.2d at 990. However, differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis and treatment are not enough to state a medical mistreatment claim under section 1983. Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971).

In his opposition to the motion for summary judgment, Mann alleged that his condition was a medical emergency and that Beaty was deliberately indifferent because he failed to treat Mann's injuries as an emergency. He contends that this failure resulted in the four-day delay in seeing the dentist. Mann also alleged that Beaty laughed when he saw Mann's jaw and did not make an effort to determine if the jaw was broken. He further alleged that Beaty is not qualified to make a medical diagnosis and could not have properly determined that the jaw was not broken just by observing it, because even the dentist had to take an x-ray in order to make this diagnosis. Mann also alleged that when he finally saw a dentist, the dentist confirmed that his condition should have been treated as a medical emergency. Finally, he alleged that Beaty has been transferred and is being closely supervised because of improprieties and poor work performance.

Viewing the evidence in the light most favorable to Mann, he has not raised any triable issue of fact as to his claim that Beaty was deliberately indifferent to his medical needs. First, Mann offered nothing more than conclusory allegations that his condition constituted a medical emergency. See Leer, 844 F.2d at 631. The fact that Mann waited for twelve hours before requesting medical assistance for his injuries indicates that even Mann himself did not consider his condition to be an emergency at the time.3 

Second, although Mann did allege that he was in extreme pain during the four-day delay before he saw a dentist, he failed to allege that he ever complained about the delay or advised any prison personnel that he was in pain during that time. Nor did he allege that he suffered any permanent injury as a result of Beaty's conduct. See Hunt, 865 F.2d at 200-201.

Third, the fact that Beaty did not think Mann's jaw was broken, and therefore did not treat the jaw and tooth injury as an emergency, merely indicates that Mann and Beaty disagreed as to the proper diagnosis and treatment of the injuries. See Shiedls, 442 F.2d at 410.

As Mann has not raised any triable issues of material fact regarding his claim that Beaty violated his Eighth Amendment rights, the district court properly granted summary judgment on Mann's claims against Beaty.

In his complaint, Mann made three allegations against defendants Lewis, Jolly, and Scalzo: (1) that the failure to provide timely medical care is the custom and practice of Beaty, Lewis, Jolly and Scalzo; (2) that Lewis, Jolly and Scalzo fail to adequately fund emergency medical services; and (3) that Lewis, Jolly and Scalzo fail to adequately supervise Beaty in his work.

Mann does not argue in his briefs on appeal that the district court erred in granting summary judgment in favor of Lewis, Jolly and Scalzo. Accordingly, it appears that Mann has abandoned these claims. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988) (claims which are not addressed in the appellant's brief are deemed abandoned). See also Fed. R. App. P. 28(a) (2) and (4).

However, even if the claims against Lewis, Jolly and Scalzo are not deemed abandoned, summary judgment was properly granted. First, Mann has made nothing more than conclusory allegations, unsupported by any facts, regarding the general practices and customs of providing medical care, the adequacy of funding for medical services and the adequacy of supervision of Beaty. See Leer, 844 F.2d at 631. Second, he has not alleged any triable facts to support his claim that his Eighth Amendment right to dental treatment was violated by Lewis, Jolly Scalzo, or anyone else. See discussion supra.

Thus, the district court did not err in granting summary judgment as to Lewis, Jolly and Scalzo.

Mann contends that the district court erred in granting summary judgment to defendants prior to allowing discovery because there are genuine issues of material fact in dispute and Fed. R. Civ. P. 56(f) precluded the trial court's dismissal of the action. These contentions lack merit.

Summary judgment is disfavored where relevant evidence remains to be discovered. Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988). However, the burden is on the non-moving party to show what material facts would be discovered that would preclude summary judgment. Id.

Generally, a party opposing a motion for summary judgment on the ground that further discovery is necessary must file a motion requesting discovery pursuant to Fed. R. Civ. P. 56(f).4  See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). The rule requires affidavits setting forth the particular facts expected from the movant's discovery. Id. A party must make clear what information he is seeking and how it would preclude summary judgment. Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir. 1986). Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment. Brae Transp., Inc., 790 F.2d at 1443. Further, the movant cannot complain if it fails to pursue discovery diligently prior to summary judgment. Id.

Mann never formally requested that he be given the opportunity to conduct discovery. At the most, he stated in his opposition to the summary judgment motion and in his response to defendants' statement of facts, that certain facts would be brought out on discovery.5  References made in memoranda to a need for discovery do not qualify as motions under Rule 56(f). Brae Transp., Inc., 790 F.2d at 1443. Furthermore, Mann has failed to show how the existence of any of these "facts" would overcome the motion for summary judgment. See Klingele, 849 F.2d at 412.

Mann had ample time to make a motion for discovery between December 1, 1986, when the court informed Mann that it would treat the pending motion as a motion for summary judgment and directed his attention to the requirements of Rule 56, and November 18, 1987, when the court granted the defendants' motion for summary judgment. The district court properly advised Mann of the procedures necessary to ward off the summary judgment motion. See Klingele, 849 F.2d at 411-12. Mann contends that he did not request discovery because the Attorney General would have filed a motion for a protective order and such motions are always granted. However, the fact remains that Mann did not request discovery or show how discovery would preclude summary judgment. See id.; Brae Transp., Inc., 790 F.2d at 1443. Therefore, the district court did not err in granting summary judgment prior to discovery.

The judgment is AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

 1

Mann named as defendants, Thomas Beaty, Correctional Medical Assistant at the Arizona Department of Corrections; Ted Jolly and Joseph Scalzo, Medical Directors at the Arizona Department of Corrections; and Samuel Lewis, Director of the Arizona Department of Corrections

 2

Mann's inadequate medical care claim is limited to Beaty's conduct and the four-day delay before he was able to see the dentist; Mann does not claim that the dentist's treatment was inadequate

 3

Mann alleges on appeal that he was aware that the medical providers would refuse to see him no matter how promptly he reported the injury. This is a conclusory allegation, unsupported by any evidence, and is therefore insufficient to raise any triable issue of fact. See Leer, 844 F.2d at 631

 4

Fed. R. Civ. P. 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions be taken or discovery to be had or may make such other order as is just.

 5

The facts that Mann asserted would be brought out on discovery consisted of allegations that Beaty's affidavit was inherently suspect because Beaty had been accused by employers of incompetence and improprieties with inmate records; that since the dentist's affidavit "did not assert his specific opinion about the injuries' emergency nature, summary judgment cannot be granted"; that "upon discovery it will be demonstrated that Beaty is only minimally educated and he has had many allegations of incompetence brought against him."