Harris v. City of Vista ( 2010 )

FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID HARRIS, No. 06-56546
Plaintiff - Appellant, D.C. No. CV-06-00980-DMS/AJB
v.
MEMORANDUM *
CITY OF VISTA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
David Harris, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs during his incarceration at the Vista
*
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).
06-56546
Detention Facility in 2001 and 2002. We have jurisdiction under 28 U.S C.
§ 1291. We review de novo a district court’s dismissal for failure to state a claim
under 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000),
and under 28 U.S.C. § 1915(e), Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (order), and we affirm.
Even assuming that Harris’s action is not time-barred, the district court
properly dismissed it because his claim — that he should have received more
aggressive treatment than what defendants administered — states a difference of
medical opinion that does not give rise to an Eighth Amendment violation. See
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); see also Simmons v.
Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (Eighth Amendment
standard for medical needs cases also applies in detention context under the
Fourteenth Amendment).
We assume that the district court declined to exercise supplemental
jurisdiction over Harris’s claim of medical malpractice under California law, and
we therefore construe the dismissal of this claim to have been without prejudice.
See Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994)
(“When . . . the court dismisses the federal claim leaving only state claims for
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resolution, the court should decline jurisdiction over the state claims and dismiss
them without prejudice.”) (citation and internal quotation marks omitted).
AFFIRMED.
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