Barry Lamon v. Hans Birkholm , 591 F. App'x 615 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY LOUIS LAMON, No. 13-16785
Plaintiff - Appellant, D.C. No. 1:09-cv-00157-AWI-
SKO
v.
HANS BIRKHOLM, M.D., MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Barry Louis Lamon, 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 serious medical needs and retaliation. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391
*
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).
F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Lamon’s
deliberate indifference claim because Lamon failed to raise a genuine dispute of
material fact as to whether defendant Birkholm was deliberately indifferent to
Lamon’s serious foot condition. See id. at 1057 (a prison official is deliberately
indifferent only if he or she knows of and disregards an excessive risk to an
inmate’s health; “[m]ere negligence in . . . treating a medical condition, without
more, does not violate a prisoner’s Eighth Amendment rights” (citation and
internal quotation marks omitted)).
The district court properly granted summary judgment on Lamon’s
retaliation claim because Lamon failed to raise a genuine dispute of material fact as
to whether Birkholm failed to provide orthotics due to Lamon accusing him of
taking kickbacks. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)
(setting forth elements of a retaliation claim in the prison context).
The district court did not abuse its discretion in denying Lamon’s discovery
requests prior to summary judgment. See Hallet v. Morgan, 296 F.3d 732, 751
(9th Cir. 2002) (providing standard of review for discovery motions and noting the
trial court’s broad discretion in discovery matters); Maljack Prods., Inc. v.
GoodTimes Home Video Corp., 81 F.3d 881, 887-88 (9th Cir. 1996) (requirements
2 13-16785
for obtaining additional discovery before court considers summary judgment
motion).
AFFIRMED.
3 13-16785