Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 29 (9th Cir. 1991)

Larry RICE, Plaintiff-Appellant,v.Helen BOS, Correctional Service Officer, Linda Moors, JohnMedlen, M.D.P.C., Orthopedic Surgeon, ADOC,Dimitri Catsaros, Physician, ADOC,Defendants-Appellees.

No. 89-16273.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 12, 1991.* Decided April 1, 1991.

Before KILKENNY, SNEED and FERGUSON, Circuit Judges.


Rice, an Arizona state prison inmate, filed the instant pro se civil rights action against three Arizona Department of Corrections ("ADOC") employees and a physician under contract to the ADOC, alleging that they had violated his eighth amendment rights by demonstrating a deliberate indifference to his serious medical needs. The district court entered summary judgment in favor of the defendants, and Rice appealed. We affirm.

Rice's eighth amendment claims arise out of two separate incidents, the first involving injuries he allegedly sustained to his back and to one or more of the toes of one of his feet, and the second concerning events subsequent to the surgical removal of his scrotal cysts. The record shows that Rice was seen, treated, and received medication for these problems on several occasions by a medical assistant and one or more physicians, including Doctors Medlen and Catsaros. Although neither CSO Bos nor CMA Moors responded to Rice's allegations concerning his need for a "lay-in" at various times, and Dr. Catsaros' affidavit does not directly address this point, it is clear that Rice's allegations involve not so much a dispute about the quality of the care he received as a difference of opinion about the type of treatment he wanted and needed. Such arguments fail to present a genuine issue of material fact concerning any deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Franklin v. Oregon, 662 F.2d 1337, 1344 (CA9 1981).

With respect to Rice's contention that the district court should not have granted the motion for summary judgment without first permitting discovery, we note that Rice filed a fairly elaborate response to the motion, including various exhibits, but failed to comply with the dictates of FRCivP 56(f). Even applying the liberal standards required of us in passing on a pro se appeal, we hold that the district court did not abuse its discretion in granting the motion for summary judgment prior to discovery. See generally Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1467 (CA9 1985), cert. denied, 475 U.S. 1048 (1986).



The panel unanimously agrees that this case is appropriate for submission without oral argument per FRAP 34(a) and CA9 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 CA9 Rule 36-3