Frank Fernandez v. Susan Risenhoover ( 2010 )

FILED
NOT FOR PUBLICATION OCT 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANK J. FERNANDEZ, No. 09-16279
Plaintiff - Appellant, D.C. No. 3:08-cv-01266-CRB
v.
MEMORANDUM *
SUSAN RISENHOOVER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Frank J. Fernandez, 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. 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. Sacks v. Office of Foreign Assets Control, 466 F.3d
764, 770 (9th Cir. 2006). We affirm.
The district court properly dismissed Fernandez’s deliberate indifference
claim because, in light of the extensive medical care that the complaint
acknowledges Fernandez received, the defendants’ refusal to give him a double
mattress states, at most, a claim of negligence. See Wood v. Housewright, 900 F.2d
1332, 1334 (9th Cir. 1990) (“While poor medical treatment will at a certain point
rise to the level of constitutional violation, mere malpractice, or even gross
negligence, does not suffice.”).
Contrary to Fernandez’s contention, the district court did not abuse its
discretion by ruling on the motion to dismiss before considering Fernandez’s
request for further discovery because discovery could not have affected a ruling on
the pleadings. Cf. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (the
district court did not abuse its discretion by staying discovery when the discovery
could not have affected summary judgment).
Fernandez’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-16279