JAMES ROJO V. DARREN BRIGHT, No. 15-16703 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 20 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JAMES ERNEST ROJO, AKA James Rojo, AKA James E. Rojo, No. U.S. COURT OF APPEALS 15-16703 D.C. No. 3:12-cv-02518-VC Plaintiff-Appellant, MEMORANDUM* v. DARREN BRIGHT, Chief Medical Officer; et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Vince G. Chhabria, District Judge, Presiding Submitted December 14, 2016** Before: WALLACE, LEAVY, and FISHER, Circuit Judges. James Ernest Rojo, a California state prisoner, appeals pro se from the district court’s judgment in his action under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We may affirm on any basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 930, 933 (9th Cir. 2004). We affirm. Summary judgment on Rojo’s deliberate indifference claim was proper because Rojo failed to raise a genuine dispute of material fact as to whether defendant Bright was deliberately indifferent in treating Rojo’s mobility problems. See Toguchi, 391 F.3d at 1057-60 (a prison official acts with deliberate indifference only if he or she knows of and disregards an excessive risk to the prisoner’s health; negligence, medical malpractice, or a difference in opinion are insufficient to establish deliberate indifference). The district court properly dismissed Rojo’s ADA claim because Rojo failed to allege facts sufficient to show that defendants failed to act on Rojo’s need for an accommodation. See Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (a “deliberate indifference” standard applies to actions seeking compensatory damages under Title II of the ADA, requiring “both knowledge that a harm to a 2 15-16703 federally protected right is substantially likely, and a failure to act upon that likelihood”). AFFIRMED. 3 15-16703
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