Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1989)

Lee W. STAMPER, Plaintiff-Appellant,v.ARIZONA DEPARTMENT OF CORRECTIONS; Joseph Scalzo, DDS; Dr.Catasaros, Medical Director, Santa Rita--TucsonASPC, Defendants-Appellees.

No. 87-15085.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 7, 1989.Decided June 20, 1989.

Before TANG, CANBY and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Plaintiff-appellant Lee W. Stamper, an inmate in the custody of the Arizona Department of Corrections (the Department), appeals from the district court's order granting summary judgment in favor of defendants-appellees.1  Stamper claims violations of his civil rights under 42 U.S.C. § 1983, asserting that the defendants have exhibited deliberate indifference to his serious medical needs in violation of the eighth amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Specifically, Stamper contends that the Department has failed to provide proper and competent treatment for seizures and other physical and mental health complications arising from a traumatic head injury suffered in 1980. We affirm.2 

We review the district court's grant of summary judgment de novo. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Anthony v. Dowdle, 853 F.2d 741, 742 (9th Cir. 1988). "Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law." Hunt, 865 F.2d at 200 (citing Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986)). See Fed. R. Civ. P. 56(c).

To establish a violation of the eighth amendment, Stamper must show deliberate indifference to his medical needs, constituting an " 'unnecessary and wanton infliction of pain.' " Estelle v. Gamble, 429 U.S. at 104 (citation omitted). "Such indifference may be manifested in two ways. It may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing Estelle v. Gamble, 429 U.S. at 104-05).

Stamper's claim does not suggest deliberate indifference by the defendants. Although his pro se complaint and supporting memorandum contain general allegations regarding the alleged incompetence of the Department's medical staff and Stamper's need for additional counseling and medical treatment, the Department countered these allegations in its motion to dismiss with the affidavit of Dr. Dimitri Catsaros. Dr. Catsaros details Stamper's extensive medical treatment by the Department from 1981 to the time of the motion. Stamper has been treated or evaluated by no less than nine separate physicians over the six-year period preceding his complaint. He has also been seen by numerous other institutional medical personnel. Although he had an opportunity to respond, Stamper failed to raise specific facts demonstrating a genuine dispute of material fact with regard to the assertions in Dr. Catsaros' affidavit. See Fed. R. Civ. P. 56(e). Cf. Estelle v. Gamble, 429 U.S. at 107 (plaintiff seen 17 times in three-month period).3  Therefore, Stamper has not shown that he has been denied access to medical staff, nor has he presented specific facts putting the competence of the Department's medical personnel into question. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982).

Stamper's dissatisfaction with the Department's course of treatment of his head injury, without more, does not establish deliberate indifference. See Estelle v. Gamble, 429 U.S. at 107 (contention that more could be done by way of diagnosis and treatment and availability of other treatment options does not rise to level of cruel and unusual punishment). Cf. Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986) (prison inmate has no independent constitutional right to medical care outside the institution); Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981) (" [a]ppellant's difference of opinion over matters of expert medical judgment or a prescribed course of medical treatment fails to state a federal constitutional question); McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977), cert. denied, 435 U.S. 917 (1978) (difference of opinion as to diagnosis and treatment between inmate and outside physicians does not serve as a basis for a civil rights cause of action). Similarly, isolated occurrences of neglect or negligent diagnosis or treatment do not amount to deliberate indifference. Wood v. Sunn, 865 F.2d 982, 989 (9th Cir. 1988); Hutchinson, 838 F.2d at 394 (citing Estelle v. Gamble, 429 U.S. at 106).4 

In the words of the district court:

The Court has reviewed the plaintiff's Motion for Reconsideration, but is still of the opinion that the extensive record of medical examinations and consultations passes constitutional muster, despite the plaintiff's dissatisfaction with the results and the fact that there are other treatment programs and doctors that he would prefer.

Stamper has failed to counter the Department's affidavits by raising a genuine issue for trial. The district court correctly applied substantive law to the uncontroverted facts before it. The grant of summary judgment for the Department is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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 Cir.R. 36-3

 1

The defendants, referred to collectively as the Department, are the Arizona Department of Corrections, Dr. Joseph Scalzo, Chief Medical Director of the Arizona Department of Corrections, and Dr. Dimitri Catsaros, the medical director of the Arizona State Prison Complex in Tucson

 2

In addition, Stamper seeks to assert a pendent state claim for violation of an Arizona statute requiring the Department to provide adequate medical and mental health services for prison inmates. Due to our resolution of his constitutional claim, we do not reach this issue. Stamper also raised a claim of a right to "rehabilitation." However, to the extent that it is necessary to raise this issue which was not discussed by the district court below, it is obvious that what Stamper is really requesting is psychiatric counseling to treat his head injury and the complications arising therefrom. At any rate, there is no constitutional right to rehabilitation. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (citing Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982)). Finally, although Stamper raised a claim of interference with his access to courts in his initial memorandum filed with the district court, he has apparently abandoned that claim on appeal

 3

Although at first glance certain of Stamper's general assertions appear to raise a factual dispute, these general assertions are contradicted by specific statements of Stamper himself, often in the same document. For example, Stamper states that his traumatic head injury has never been tested, but later states that he has had at least one "Cat-scan." Similarly, Stamper claims that none of the prison physicians are competent. However, he later states that Dr. George Nash, a neuropsychologist whom Stamper has admittedly seen, and other unidentified personnel are competent

The only assertion in Dr. Catsaros' affidavit specifically controverted by Stamper is whether or not Stamper has made requests to be seen by Dr. Catsaros. In light of the other substantial evidence of the Department's attention to Stamper's physical and psychological problems, this fact, albeit contested, is irrelevant.

 4

Stamper alleged that he spent six months at the Department's Alhambra facility without receiving treatment, although he admits to being placed in the psychiatric ward for observation. Dr. Catsaros' affidavit states that, while at Alhambra, Stamper was evaluated and reevaluated by Dr. Harrison Baker, a psychiatrist and clinical director, another psychologist and a medical doctor and was treated with Mellaril, an antipsychotic medication. Stamper did not come forward in his response, motion for consideration or briefs on appeal with specific facts contradicting Dr. Catsaros' statements. We therefore need not decide whether a six-month evaluation period, without treatment, constitutes an isolated instance of neglect