Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 1320 (9th Cir. 1989)

Jerry LATTIN, Plaintiff-Appellant,v.Beverly BECK, Montana State Prison, Hospital Infirmary,Warden McCormick, Warden of Montana State Prison,Mike Mahoney, Associate Warden ofTreatment, Doctor Vessie,Defendants-Appellees.

No. 89-35046.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 15, 1989.* Decided Sept. 21, 1989.



Lattin, a state prisoner, appeals the dismissal of his action brought pursuant to 42 U.S.C. § 1983. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1343(a) (3). The district court, in examining evidence outside the pleadings, dismissed the action because Lattin did not show that the defendants had been deliberately indifferent to his medical condition. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Where matters which are outside the pleadings are submitted to and considered by the court, a motion to dismiss for failure to state a claim is treated as a motion for summary judgment. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). We review a summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must determine, viewing the evidence in the light most favorable to the nonmoving 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).

To state a section 1983 claim for a violation of a prisoner's eighth amendment rights for failure to provide medical care, the prisoner must allege a deliberate indifference to his medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (Estelle) . A difference of opinion concerning the medical treatment needed is not sufficient. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

Lattin has alleged that various prison personnel have been deliberately indifferent to his medical condition by failing to give him "the heart by-pass operation he so despirately [sic] needs." Lattin has not alleged that he received no medical treatment. Neither has Lattin alleged that there were serious delays in his treatment. Instead, as found by both the magistrate and the district judge, Lattin "simply disputes the opinions of two independent medical evaluations."

Lattin received medical treatment in excess of 24 times over a 4-month period. Such treatment does not indicate that defendants were indifferent to Lattin's condition.

Once the party moving for summary judgment points out that there is no genuine issue of material fact on an issue for which the nonmoving party will bear the burden of proof, the nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (Celotex) . After the defendants pointed out that there was no genuine issue of fact regarding indifference to Lattin's medical condition, it was incumbent upon him to demonstrate that a genuine issue of material fact existed. Lattin failed to produce any evidence of deliberate indifference to his medical condition. See Estelle, 429 U.S. at 107. Therefore, entry of summary judgment was appropriate.

Lattin argues that the district court did not allow him "adequate time to obtain affidavits and witness statements, before it dismissed the plaintiff's complaint." It is a general rule that a motion for summary judgment should only be granted after adequate time has been afforded the nonmoving party to complete discovery. See Celotex, 477 U.S. at 322; Grove v. Mead School District No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985). But, " [t]he mere hope that further evidence may develop prior to trial is an insufficient basis for a continuance." Continental Maritime of San Francisco, Inc. v. Pacific Coast Metal Trades District Council, 817 F.2d 1391, 1395 (9th Cir. 1987).

Lattin filed a motion for mandamus or motion for immediate relief. Because of the urgency alleged by Lattin, the magistrate promptly ordered defendants to file medical records with the court. Shortly after Lattin asserted this urgency, the defendants filed the motion to dismiss. Even after this motion to dismiss was filed, Lattin again filed a motion for immediate court orders. Since Lattin was asserting the urgency of the situation, and has made no indication that any evidence exists which could salvage his claim, it was not an error for the district court to decide the summary judgment motion at that time.

Lattin, for the first time on appeal, argues that he was denied access to the courts. Issues which are presented for the first time on appeal ordinarily will not be reviewed. Babb v. Schmidt, 496 F.2d 957, 960 (9th Cir. 1974); Michael-Regan Co. v. Lindell, 527 F.2d 653, 659-60 (9th Cir. 1975). We decline to entertain Lattin's new charge.



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