Benjamin Espinosa v. Robert Bannister ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN W. ESPINOSA, No. 16-16196
Plaintiff-Appellant, D.C. No. 3:14-cv-00668-RCJ-VPC
v.
MEMORANDUM*
ROBERT BANNISTER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Benjamin W. Espinosa, a Nevada state prisoner, 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. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056
*
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).
(9th Cir. 2004). We affirm.
The district court properly granted summary judgment because Espinosa
failed to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to his medical conditions. See id. at 1057-60 (a prison
official is deliberately indifferent only if he or she knows of and disregards an
excessive risk to inmate health; a difference of opinion concerning the course of
treatment, medical malpractice, or negligence in diagnosing or treating a medical
condition does not amount to deliberate indifference).
The district court did not abuse its discretion in denying Espinosa’s motions
for appointment of counsel because Espinosa failed to demonstrate exceptional
circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting
forth standard of review and requirements for appointment of counsel).
The district court did not abuse its discretion in denying Espinosa’s motion
for leave to file an amended complaint because the proposed amendment would
have been futile. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)
(setting forth standard of review and explaining that “[f]utility alone can justify the
denial of a motion to amend” (citation and internal quotation marks omitted)); see
also Toguchi, 391 F.3d at 1060 (“A showing of medical malpractice or negligence
is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”).
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We reject as unsupported by the record Espinosa’s argument that the district
court erred by denying him an increase in the copywork limit.
Espinosa’s motion to strike (Docket Entry No. 33) is denied.
AFFIRMED.
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