Patrick Smrz v. Correctional Medical Services, et al, No. 09-35812 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 24 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT PATRICK EDWARD SMRZ, Plaintiff - Appellant, No. 09-35812 D.C. No. 1:07-cv-00340-EJL v. MEMORANDUM * CORRECTIONAL MEDICAL SERVICES, Defendant - Appellee. Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Submitted November 16, 2010 ** Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges. Idaho state prisoner Patrick Edward Smrz appeals pro se from the district court s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291. We review de novo, EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 746 (9th Cir. 2003), and we affirm. The district court properly granted summary judgment on Smrz s Eighth Amendment claim because he failed to raise a triable issue as to whether defendant Correctional Medical Services acted with deliberate indifference through delay in treating his facial skin cancer or by sending him to a doctor who was not a plastic surgeon or oncologist. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (difference of opinion between the prisoner and prison medical authorities regarding treatment does not amount to deliberate indifference). We do not consider Smrz s contentions raised for the first time on appeal. See Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008). Smrz s remaining contentions are unpersuasive. We deny Smrz s motion requesting an order for remand. AFFIRMED. 2 09-35812
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