Ivan Kilgore v. Karen Kelly

FILED
NOT FOR PUBLICATION
OCT 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IVAN KILGORE, No. 14-16023
Plaintiff - Appellant, D.C. No. 2:07-cv-02485-TLN-
KJN
v.
KAREN KELLY; JAGDEEP BAL; MEMORANDUM*
JAMES R. WEDELL; GABRIEL S.
BORGES; MARCUS WINTON; GLORIA
FORSHAY; NANCY DUNN; GREGORY
HAMPTON,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted October 13, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
*
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).
1
Ivan Kilgore, a California state prisoner, appeals pro se from the district
court’s order granting summary judgment in his 42 U.S.C. § 1983 action. Kilgore
alleged that eight named defendants were deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment. 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 Kilgore did
not raise a genuine issue of material fact as to whether any of the defendants were
deliberately indifferent in treating an inverted papilloma in his right nostril. See id.
at 1058 (prison officials act with deliberate indifference only if they know of and
disregard an excessive risk to a prisoner’s health). Although Kilgore disagreed
with the length and course of treatment prescribed by his doctors, a difference of
opinion about treatment options does not amount to an Eighth Amendment
violation. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Notably,
Kilgore’s prison doctors referred him to ear-and-throat specialists at the University
of California – Davis. Any delay in treatment was not caused by deliberate
indifference but was due at least in part to the hospital’s internal scheduling
practices. Kilgore continued to meet regularly with prison doctors throughout the
time period at issue.
2
The district court properly granted summary judgment on Kilgore’s other
claims, as well. Kilgore raised no genuine issue of material fact as to whether
defendant Kelly either knew of a constitutional violation and failed to prevent it,
see Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), or implemented a policy
that was “the moving force” behind a constitutional violation, Hansen v. Black,
885 F.2d 642, 646 (9th Cir. 1989) (quoting Thompkins v. Belt, 828 F.2d 298, 304
(5th Cir. 1987)). Nor did Kilgore raise a genuine issue of material fact as to
whether other prison officials acted with deliberate indifference when they
administered Kilgore’s post-surgery prescriptions and pain medications. See
Toguchi, 391 F.3d at 1057.
We deny Winton’s motion to strike Kilgore’s reply as untimely. We deny
Kilgore’s request for appointment of counsel and a medical expert. See, e.g.,
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth “exceptional
circumstances” requirement for appointment of counsel). We are unpersuaded by
Kilgore’s remaining contentions.
AFFIRMED.
3