Unpublished Disposition, 917 F.2d 28 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 917 F.2d 28 (9th Cir. 1989)

Scott SANDERS, Plaintiff-Appellant,v.Dorothy VIGIL, et al., Defendants-Appellees.

No. 89-15195.

United States Court of Appeals, Ninth Circuit.

Submitted March 12, 1990.* Decided Oct. 22, 1990.

Before FLETCHER, PREGERSON and NELSON, Circuit Judges.


MEMORANDUM** 

Scott Sanders, an Arizona state prisoner, appeals the district court's grant of appellee's motion for summary judgment in this action brought under 42 U.S.C. § 1983. We affirm.

BACKGROUND

Appellant Sanders is an inmate in the custody of the Arizona Department of Corrections. He filed this section 1983 action against officials of the Department on February 27, 1987, alleging, inter alia, inadequate medical treatment, denial of access to the prison law library, and unlawful conditions of confinement.

Appellant has a number of health problems, many of which predate his incarceration. When he entered prison, Sanders was taking medications prescribed by a psychiatrist, and had received treatment related to an alleged attempted suicide. He also had a history of bronchial asthma, for which he was under treatment at the time he was imprisoned. Sanders' asthma is exacerbated by his heavy cigarette smoking.

Sanders' asthma was aggravated by serious smoke inhalation during a prison riot in December 1986. After that episode, he was hospitalized for three days before being returned to the prison. Since that time, Sanders has been taken to the hospital at least five times due to breathing problems, symptoms of acute anxiety, and losses of consciousness. He has been seen on a regular basis throughout this period by doctors, physicians' assistants, nurse practitioners, and psychiatrists both inside and outside the prison.

One of Sanders' chief complaints is that he has been prescribed medications which he considers to be inappropriate for his conditions, and that prison doctors, who are general practitioners, have disagreed with outside specialists with regard to courses of treatment. Sanders has read medical encyclopedias and other medical literature on his own, and has concluded from his research that the treatment being provided to him is inadequate.

Sanders also claims that his incoming and outgoing legal mail has been tampered with by prison officials. He asserts that mail from his attorney has been opened by prison authorities prior to his receipt of such correspondence. Sanders additionally claims that mail that he sent to the district court was opened by prison officials before dispatch. Sanders sought a restraining order in the district court against such alleged mail tampering, but his motion was denied.

Sanders also complains of limited access to the law library, although the record indicates that he managed to file more than 50 documents in this action and that at one point during the pendency of this case in the district court he was visiting the library ten times per week.

Finally, Sanders claims that the conditions of his confinement have been unconstitutional. He complains that he has had few opportunities for outdoor recreation and for taking showers and that his cell has been poorly ventilated. Appellees responded with records indicating that Sanders had repeatedly refused to leave his cell for recreation and showers and that the cell's ventilation was adequate and in working order.

The district court reviewed voluminous materials filed by appellant before entering summary judgment for appellees on January 19, 1989.

Appellant filed a timely notice of appeal on February 24, 1989.

DISCUSSION

A grant of summary judgment is reviewed de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). A district court order denying injunctive relief is reviewed for an abuse of discretion. Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir. 1987).

Sanders alleges that he has been denied adequate treatment for his various medical conditions and that his constitutional rights have thereby been violated. In order to make out a valid constitutional claim on these grounds, a prisoner must show that prison authorities acted with "deliberate indifference to his serious medical needs." Wood v. Sunn, 852 F.2d 1205, 1210 (9th Cir. 1988) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This does not mean "mere malpractice," but dereliction which rises to the level of "unnecessary and wanton infliction of pain." Wood, 852 F.2d at 1210-11 (quoting Estelle, 429 U.S. at 104). "Neither 'an inadvertent failure to provide adequate medical care,' nor a physician's negligence 'in diagnosing or treating a medical condition ... state a valid claim of medical mistreatment under the Eighth Amendment.' " Anthony v. Dowdle, 853 F.2d 741, 743 (9th Cir. 1988) (quoting Estelle, 429 U.S. at 105-06).

Sanders has been seen and treated by various health practitioners on a regular basis during his incarceration. He has also been treated by outside hospitals and outside physicians on several occasions.1  Sanders' claims are based on alleged differences of opinion regarding the appropriateness of his treatment: disagreements between outside doctors and prison doctors as well as disagreements between the doctors and Sanders himself. Evidence of such disagreements, and evidence of resulting actions and inactions, might be sufficient to overcome a summary judgment motion in a simple malpractice action, but even if proven, such evidence would not demonstrate deliberate indifference. The district court was therefore correct in granting summary judgment for appellees on this issue.

Sanders asserts that prison officials have tampered with his incoming and outgoing legal mail. Sanders filed two motions with the district court requesting restraining orders against further alleged tampering. These motions were denied.

Sanders first alleges tampering by prison officials of mail sent to the district court. We agree with the district court's determination that Sanders has failed to show that the single incident in which mail sent to the court broke open in the mail was the result of anything other than Sander's own negligence in sending a large number of documents in a flimsy envelope.

Sanders further asserts that legal mail addressed to him has been opened by prison officials a number of times prior to his receipt of such mail.

In Royse v. Superior Court of Washington, 779 F.2d 573, 574-75 (9th Cir. 1986), we found that inspection of prisoner legal mail for contraband was proper where the inspection procedure did not deny the prisoner meaningful access to the courts within the meaning of Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). Sanders has not demonstrated that interference with his mail has denied him meaningful access to the courts. Sanders offers no evidence to show that his communications with the court have been hindered or delayed, or that his ability to prepare legal documents has been restricted. See Royse, 779 F.2d at 575. Therefore, the district court's denial of Sanders' motion for a restraining order against alleged mail tampering was proper.

Appellant claims that his constitutional rights were violated by limitations on his access to the prison law library. The evidence indicates that he had generous access to the library, at times visiting it ten times per week. Inmates must be permitted reasonable access to a law library, but access need not be unlimited. Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir. 1985). The district court properly concluded that Sanders' access to the law library had been reasonable.

Sanders complains of limited opportunities for outdoor exercise and for showering. Affidavits and records filed by appellees indicate that Sanders refused many such opportunities during the period covered by his complaint. Sanders did not rebut this evidence, and the district court properly rejected this claim.

Sanders alleges that his cell was improperly ventilated, creating living conditions which violated his eighth amendment rights. Appellees produced evidence indicating that the vents in Sanders' cell had been in working order, and Sanders' only response to this consisted of vague and conclusory allegations which were not considered by the district court as raising a genuine issue of material fact. See Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978); cf. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) ("Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss."). This conclusion was correct, as was the grant of summary judgment on this issue.

For all of the above reasons, the judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to 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 Circuit Rule 36-3

 1

Outside treatment has been provided despite the fact that there is no constitutional right to treatment by outside doctors supplemental to that provided within the institution. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986). Sanders' claim cannot be based on any such purported right

 2

Sanders has raised many claims. Several of these claims, however, have arisen since the district court's judgment, including claims regarding an untreated epileptic seizure, the reduction in current medications for asthma and an hiatal hernia, and the denial of anticonvulsant medication. We will not consider these new claims on appeal