Salvador Mendoza v. Paula Crinklaw ( 2013 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            JUN 20 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    SALVADOR MENDOZA,                                No. 12-15886
    Plaintiff - Appellant,            D.C. No. 5:10-cv-04415-EJD
    v.
    MEMORANDUM *
    PAULA CRINKLAW,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Edward J. Davila, District Judge, Presiding
    Submitted June 18, 2013 **
    Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
    Salvador Mendoza, a California 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 medical needs. We have jurisdiction under 28 U.S.C.
    *
    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).
    § 1291. We review de novo, Toguchi v. Chung, 
    391 F.3d 1051
    , 1056 (9th Cir.
    2004), and we affirm.
    The district court properly granted summary judgment because Mendoza
    failed to raise a genuine dispute of material fact as to whether defendant was
    deliberately indifferent in treating Mendoza’s injured finger. See 
    id. at 1058, 1060
    (prison officials act with deliberate indifference only if they know of and disregard
    an excessive risk to inmate health; “[a] showing of medical malpractice or
    negligence is insufficient to establish a constitutional deprivation under the Eighth
    Amendment”).
    The district court did not abuse its discretion in denying Mendoza’s request
    to file a supplemental declaration in opposition to summary judgment because the
    fact Mendoza sought to establish was assumed true for purposes of the summary
    judgment motion. See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 
    285 F.3d 808
    , 813
    (9th Cir. 2002) (“We review for abuse of discretion evidentiary rulings made in the
    context of summary judgment.”).
    Although Mendoza did not receive notice of the requirements to defeat
    summary judgment concurrently with the motion for summary judgment, the error
    was harmless in this case. See Woods v. Carey, 
    684 F.3d 934
    , 935, 941 (9th Cir.
    2012) (Rand notice must be served concurrently with a motion for summary
    2                                     12-15886
    judgment; failure to provide adequate Rand notice “is a ground for reversal unless
    it is clear from the record that there are no facts that would permit the inmate to
    prevail”).
    Mendoza’s request for judicial notice, filed on November 15, 2012, is denied
    as unnecessary because the document he seeks to have this court judicially notice
    is already part of the district court record.
    AFFIRMED.
    3                               12-15886
    

Document Info

Docket Number: 12-15886

Judges: Tallman, Smith, Hurwitz

Filed Date: 6/20/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024