Ira Parthemore v. James Tilton , 393 F. App'x 493 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IRA DON PARTHEMORE, No. 09-16417
Plaintiff - Appellant, D.C. No. 2:06-cv-02026-MCE-
GGH
v.
JAMES E. TILTON, CA Director of MEMORANDUM *
Corrections; ROSEANNE CAMPBELL,
Warden-Mule State Creek Prison; J.A.
MILLIMAN; PARNELL GALLOWAY,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
**
Submitted August 10, 2010
Before: HAWKINS, McKEOWN, and IKUTA, Circuit Judges.
Ira Parthemore appeals pro se from the district court’s summary judgment in
his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C § 1291. We
*
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).
review de novo summary judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th
Cir. 2002). We affirm.
The district court properly granted summary judgment on the claims against
defendants Tilton and Campbell because Parthemore did not raise a triable issue as
to whether these defendants, in their supervisory capacities, either failed to
adequately supervise the handling of his initial agency appeal or implemented an
unconstitutional policy. See Edgerly v. City of and County of San Francisco, 599
F.3d 946, 961 (9th Cir. 2010) (a supervisor may be liable for failing to adequately
supervise); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (a supervisor
may be liable for implementing an unconstitutional policy). Likewise, Parthemore
did not raise a triable issue as to whether Tilton and Campbell failed to adequately
investigate his appeal. Rather, Parthemore simply disagreed with their decision to
rely on the medical staff’s recommendation that he was physically capable of
performing a porter’s work. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)
(difference of opinion does not constitute deliberate indifference).
Similarly, the district court properly concluded that Parthemore did not raise
a triable issue as to whether defendant Galloway was deliberately indifferent. Dr.
Galloway recommended to prison officials that Parthemore perform only light
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duties. The fact that Parthemore would have preferred medical unassignment or
work as a clerk does not raise a triable issue. See id.Summary judgment was also proper as to Parthemore’s Eighth Amendment
claims against defendant Milliman. Parthemore did not raise a triable issue
regarding Milliman’s treatment of him because even if Parthemore’s allegations
regarding Milliman’s conduct were true, such conduct does not rise to the level of
deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (setting forth deliberate indifference standard).
Parthemore did not raise a claim under the Americans with Disabilities Act
to the district court and has therefore forfeited this issue on appeal.
AFFIRMED.
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