Jeremy Lovelady v. Beamer ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY RAY LOVELADY, No. 17-35909
Plaintiff-Appellant, D.C. No. 2:16-cv-01614-PK
v.
MEMORANDUM*
BEAMER, Dr., Prison official at Eastern
Oregon Correctional Inst.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding**
Submitted June 12, 2018***
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Jeremy Ray Lovelady, an Oregon state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deliberate indifference to his serious medical needs and negligence. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Williams v. Paramo, 775
F.3d 1182, 1191 (9th Cir. 2014), and we affirm.
The district court properly granted summary judgment on Lovelady’s
deliberate indifference claim against defendant Garton because Lovelady failed to
raise a genuine dispute of material fact as to whether Garton delayed Lovelady’s
treatment. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)
(recognizing that an inadvertent failure to provide adequate medical care or
negligence in diagnosing or treating a medical condition does not support a
deliberate indifference claim); see also Fed. R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to . . . oppose a motion [for summary judgment] must be made on
personal knowledge.”).
The district court properly granted summary judgment on Lovelady’s
deliberate indifference claim against Beamer because Lovelady did not exhaust his
administrative remedies, and Lovelady failed to raise a genuine dispute of material
fact as to whether administrative remedies were effectively unavailable to him.
See Paramo, 775 F.3d at 1190-91 (outlining the steps involved for proper
exhaustion).
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The district court properly granted summary judgment on Lovelady’s
negligence claim against Beamer because the claim is barred from litigation in
federal court by sovereign immunity. See Or. Rev. Stat. § 30.265(1) (requiring the
substitution of the State of Oregon as defendant for torts allegedly committed by a
state employee acting within the scope of employment); see also Holley v. Cal.
Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (recognizing that the Eleventh
Amendment bars damages claims against a state “unless Congress has abrogated
state sovereign immunity under its power to enforce the Fourteenth Amendment or
[the] state has waived it”). To the extent Lovelady sought injunctive relief to
prevent future harm, Lovelady’s negligence claim against Beamer is moot, as
Lovelady concedes in his reply brief that Beamer has provided the medical
treatment sought.
Lovelady’s appeal of the denial of his request for an injunction is moot. See
Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when
underlying claims have been decided, reversal of district court’s effective denial of
a preliminary injunction would have no practical consequences, and the issue is
therefore moot).
Appellees’ motion to strike portions of Lovelady’s reply brief (Docket Entry
3 17-35909
No. 19) is denied.
AFFIRMED.
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