Michael Holtsinger v. Tonya Voros

FILED
CORRECTED August 9, 2011 + JUL 14 2011
MOLLY C. DWYER, CLERK
NOT FOR PUBLICATION U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HOLTSINGER, No. 10-16076
Plaintiff-Appellant, D.C. No. 2:03-cv-00732-MCE-
CMK
vs.
MEMORANDUM *
Tonya Voros; T. Nolan,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 16, 2011 **
San Francisco, California
Before: BYBEE and MURGUIA, Circuit Judges, and EZRA, District Judge.***
*
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).
***
The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.+
California state prisoner Michael Holtsinger appeals the district court’s grant
of summary judgment in favor of Defendant T. Nolan on Holtsinger’s 42 U.S.C. §
1983 action alleging deliberate indifference to his serious medical needs in violation
of the Eighth Amendment. Holtsinger also appeals the district court’s award of $500
in compensatory damages in his favor and against Defendant Tonya Voros. Upon
consideration of the law, arguments, and record, we affirm on both counts. Because
the history of this case is familiar to the parties, we need not recount it here.
We have reviewed the record de novo, as we must, see Gordon v. Virtumundo,
Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), and agree with the district court that no
genuine issue of material fact exists regarding whether Defendant Nolan was
deliberately indifferent to Holtsinger’s medical needs in violation of the Eighth
Amendment. The undisputed facts show that Nolan, in his position as a psychologist,
did not have the authority to diagnose medical needs or prescribe treatment for such,
nor did he have the authority to order medical treatment and thus could not ensure that
Holtsinger receive emergency medical treatment. See Cunningham v. Gates, 229 F.3d
1271, 1289 (9th Cir. 2000) (explaining that a defendant can be held liable for failure
to intercede to prevent constitutional violation only if he had a realistic opportunity
to do so). Accordingly, the district court did not err in granting summary judgment
to Defendant Nolan.
2
The court reviews the district court’s damages determination following a bench
trial for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843
(9th Cir. 2004). Although Holtsinger considers the $500 in compensatory damages
awarded to him for Voros’s indifference to be inadequate, a review of the record does
not indicate that the district court clearly erred in making such award.
AFFIRMED.
3