Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1989)

MEMORANDUM^** 

Plaintiff-Appellant Larry Gooden is an inmate who is incarcerated in the custody of the Arizona Department of Corrections. On September 20, 1988, Gooden filed an action under 42 U.S.C. § 1983, alleging that appellees violated the Eighth Amendment's prohibition against cruel and unusual punishment by delaying surgery to correct a hernia condition. The district court granted appellees motion for summary judgment concluding that Gooden had not introduced sufficient probative evidence to sustain an allegation that appellees were deliberately indifferent to Gooden's serious medical needs. Gooden timely filed his notice of appeal on June 16, 1989. We affirm.

Gooden first complained to prison health care providers about his discomfort on October 15, 1985. At this examination, Gooden was diagnosed as having an epigastric hernia. This condition can be routinely managed, and surgery to correct this condition is considered elective. Records indicate that after being offered the option of surgery, Gooden declined. During 1986, Gooden visited ADOC health care providers but did not raise any further complaints about his hernia.

Over the next two years, Gooden admitted that he received medical evaluations and alternative treatment for his hernia condition. Specifically, on September 24, 1987, a surgeon specialist confirmed the prior diagnosis of a hernia and determined that the hernia could be routinely scheduled for repair. Gooden was placed on routine priority because of the elective nature of the surgery. On September 9, 1988, Gooden again was examined by the surgeon specialist who recommended surgical repair of the hernia. Surgery was performed on October 17, 1988. Later, Gooden received a follow-up examination in which the doctor noted that he was recovering properly.

To state a cause of action under 42 U.S.C. § 1983, Gooden is required prove that appellees acted with deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-105 (1976). Gooden "must allege acts or omissions sufficiently harmful to evidence deliberate indifference," and " [i]t is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." Id. at 106.

Summary judgment is appropriate when viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-1340 (9th Cir. 1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir. 1989). Upon a motion for summary judgment, the nonmoving party "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Furthermore, to properly oppose a motion for summary judgment, Gooden must produce "significant probative evidence tending to support the complaint." Id. at 249 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). We review a grant of summary judgment de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); State Farm Fire and Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989).

Here, Gooden alleges that appellees did not give him prompt access to elective medical treatment, but he presented no affidavits or other evidence to the district court to support his claim. Moreover, Gooden does admit that he received medical examinations and treatment concerning his hernia condition. The results of the examinations indicate Gooden's condition could be routinely managed. In addition, Gooden produced no evidence that he experienced severe pain or suffering. Therefore, Gooden has not raised any genuine issues of material fact.

AFFIRMED