William Donald Harvey, Plaintiff-appellant, v. Klamath County Jail Commander/superintendent, Klamath Countyjail Medical Staff, Charles D. Bury and Jackquelyngail Hoffman, Defendants-appellees, 985 F.2d 572 (9th Cir. 1993)

MEMORANDUM^** 

William Donald Harvey, an Oregon state prisoner, appeals pro se the district court's summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action alleging that prison officials acted with deliberate indifference to his serious medical needs by failing to refill his prescription for Atarax, a drug used to treat anxiety disorders. He also appeals the district court's denial of his motion for appointment of counsel. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

Between May 13, 1991 and May 21, 1991, Harvey was incarcerated in Klamath County Jail in connection with his transfer from Lake County Jail to the Oregon State Correctional Institution in Pendleton. Upon his arrival, he requested that his prescription for Atarax be refilled. Jackquelyn Gail Hofmann, R.N., a prison nurse, interviewed Harvey on May 14, 1991, and referred his request to Charles D. Bury, M.D., a prison doctor. After meeting with Harvey on May 16, 1991, and discussing his condition, Dr. Bury determined that Atarax was medically unnecessary. As a result, Harvey contends that he suffered from anxiety, headaches, backaches, nausea and diarrhea. Upon his transfer to the Oregon State Correctional Institution in Pendleton on May 21, 1991, he was seen by a nurse, who prescribed anti-anxiety medication.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). We review for an abuse of discretion the district court's failure to appoint counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

DISCUSSION

Harvey contends that prison officials violated his eighth amendment rights by failing to refill his prescription for Atarax.

To establish a violation of the eighth amendment, Harvey must show that prison officials were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A difference of opinion over proper medical treatment does not constitute deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

Although Harvey concedes that he was seen by prison medical staff during his incarceration at Klamath County Jail, he contends that Dr. Bury should have conducted a physical examination and that his nervous condition required treatment with Atarax. By contrast, Dr. Bury states in his affidavit that after seeing Harvey and discussing anti-anxiety medications, he determined that Harvey displayed no symptoms warranting a physical examination and that Atarax was medically unnecessary. This difference of opinion over proper medical treatment does not constitute deliberate indifference.¹  Sanchez, 891 F.2d at 242.

Because this case presents no exceptional circumstances, the district court did not abuse its discretion by failing to appoint counsel for Harvey. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

AFFIRMED.