William Endres v. Elena Tootell

FILED
NOT FOR PUBLICATION AUG 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM M. ENDRES, No. 12-16641
Plaintiff - Appellant, D.C. No. 3:10-cv-03924-TEH
v.
MEMORANDUM *
ELENA TOOTELL, Chief Medical
Officer, San Quentin State Prison,
individually and in her official capacity,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
William M. Endres, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
*
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).
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 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 Endres failed
to raise a genuine dispute of material fact as to whether the delay he experienced in
receiving surgery for his benign brain tumor led to increased suffering or further
injury. See id. at 1058-59 (a prison official acts with deliberate indifference only if
he or she knows of and disregards an excessive risk to the prisoner’s health and
safety); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to establish deliberate
indifference based on a delay in treatment, there must be proof that it resulted in
further significant injury or the wanton infliction of pain); see also Nelson v. Pima
Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and
speculation do not create a factual dispute for purposes of summary judgment.”).
AFFIRMED.
2 12-16641