Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

MEMORANDUM^** 

James F. Taylor, a Nevada state prisoner, appeals pro se the district court's grant of summary judgment in favor of Donna Caldwell, a registered nurse with the Nevada Department of Prisons, in his 42 U.S.C. § 1983 action for violation of his eighth amendment rights based on alleged deliberate indifference to his serious medical needs. We affirm.

In his complaint, Taylor alleges that while he was incarcerated at the Nevada State Prison, Dr. Fields extracted his seven remaining upper front teeth, prescribed Tylenol 3 as a pain medication, and told Nurse Caldwell that he should be informed if Taylor experienced any problems related to the extraction. The following day, Taylor asked Caldwell to call Dr. Fields because Taylor was in severe pain, and to ask the doctor to increase the pain medication and issue a script for a soft food diet. Taylor later learned that Caldwell had refused to make the call. Taylor alleges that because Caldwell refused to call Dr. Fields, he was forced to remain in severe pain for four days, until the doctor returned and prescribed more pain medication and issued the script for a soft food diet.

Taylor contends that the district court treated Caldwell's motion as a motion to dismiss for failure to state a claim, and improperly granted it. Alternatively, he contends that he raised a genuine issue of material fact sufficient to overcome Caldwell's motion for summary judgment. Both of these contentions are meritless.

First, a review of the district court's order and final judgment shows that the district court properly treated Caldwell's motion as a motion for summary judgment.

Second, Taylor did not raise any genuine issues of material fact regarding his medical mistreatment claim. In support of her motion for summary judgment, Caldwell alleged that she did not call Dr. Fields as Taylor requested because Taylor had failed to show up to take the medication. She submitted prison medical records which show that Taylor did not show up for his prescribed pain medication three different times during Dr. Fields's four-day absence. Taylor responded with an affidavit in which he claimed that he never refused to take any of the medication as alleged by Caldwell. However, such a conclusory allegation is insufficient to raise a triable issue of fact. See Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (party opposing summary judgment cannot rest on conclusory allegations but must set forth specific facts that show there is a genuine issue for trial).

Taylor's claim that Caldwell was deliberately indifferent to his medical needs by refusing to call a doctor to request stronger pain medication is nothing more than a claim (under section 1983) of difference of opinion regarding medical diagnosis and treatment, which does not constitute constitutionality deficient medical treatment. See Shields v. Kunkel, 442 F.2d 409, 410 (9th Cir. 1971) (differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis or treatment are not enough to state a medical mistreatment claim). Taylor's claim of deliberate indifference based on Caldwell's refusal to call a doctor to get a script for a soft food diet for Taylor also has no merit because Taylor concedes that the only result was a four day delay in the provision of such a diet. Such a delay does not constitute deliberate indifference. See Toussiant v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). Accordingly, the district court did not err in granting Caldwell's motion for summary judgment.

AFFIRMED.