NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRYAN SCOTT GRAFF, No. 22-16182
Plaintiff-Appellant, D.C. No. 2:20-cv-01630-ROS-DMF v.
DAVID SHINN, Director; MURRIETTA, MEMORANDUM* Unknown; CO II; GUEVARRA, Unknown; CO III; HALL, Unknown; CO II; MILAGAN, Unknown; Sergeant; PEWGLESS, Unknown; CO II; DURAGO, Unknown; CO II; CHARLES L RYAN, named as: Chuck Ryan - Director of Prisons; RICHARD PRATT, Assistant Director of Prisons; UNKNOWN PARTY, named as: Jane Doe - vendor contracted in 2010; UNKNOWN PARTY, named as: Jon Doe - Director of Prisons in 2010; DIGIRO, Unknown; Movement Sgt.; MERRIMAN, Unknown; Provider; C MILBURN, Grievance Coordinator; MANSFIELD, Unknown; Grievance Coordinator CO IIII; LACY, Unknown; Maintenance; CORIZON, Out of State Vendor; CENTURION, Health Vendor; L CARR, Director of Nursing; S WRIGHT, Health Care Worker; ARTEMISA CORDOVA, NMI,
Defendants-Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Submitted June 20, 2024**
Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.
Bryan Scott Graff, an Arizona state prisoner, appeals pro se from the district
court’s judgment dismissing his claim under 42 U.S.C. § 1983 and the Eighth
Amendment for deliberate indifference to his serious medical needs against
Centurion of Arizona, LLC (Centurion). We have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s grant of summary judgment, Mendiola-
Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016), and we affirm.
“Prison officials violate the Eighth Amendment if they are ‘deliberately
indifferent to [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d
1076, 1081 (9th Cir. 2014) (en banc) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)) (cleaned up). Centurion, a private entity, provides correctional healthcare
services at Graff’s Arizona state prison and treated Graff for hernia pain in 2020.
We conclude that Graff’s hernia constituted a serious medical need, but the district
court properly determined that Graff failed to present evidence from which a
reasonable jury could conclude that Centurion was deliberately indifferent to that
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 serious medical need.
No reasonable jury could conclude based on the evidence in the summary
judgment record that Centurion “has the policy/practice of not fix[]ing hernias to
save money.” Graff first brought his hernia pain to Centurion’s attention on July 1,
2020. Within two weeks, Graff had been seen by both a nurse and a nurse
practitioner, with the latter ordering a surgical consultation at an outside medical
facility. Centurion authorized the surgical consultation, which took place on
September 21, 2020. Graff underwent hernial repair surgery on October 22, 2020,
less than four months after Graff first brought his concerns to Centurion’s
attention. These facts could not support a jury’s finding of deliberate indifference
to Graff’s serious medical needs.
Graff points out that the nurse practitioner who first saw him initially
recommended an ultrasound rather than a surgical consultation. The same
provider, however, quickly rescinded that recommendation and ordered a surgical
consultation a day later. This sequence of events does not suggest a policy of
delay or deliberate indifference to Graff’s serious medical needs.
Graff suggests that his hernia was life-threatening and that Centurion should
have authorized emergency surgery soon after his July 1, 2020, request. Record
evidence indicates that Graff’s condition did not constitute a life-threatening
emergency or warrant immediate surgery. Graff’s disagreement with his medical
3 providers, standing alone, does not create a question of deliberate indifference for a
jury. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“A difference
of opinion between a physician and the prisoner—or between medical
professionals—concerning what medical care is appropriate does not amount to
deliberate indifference.”) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir.
2012)), overruled on other grounds by Peralta, 744 F.3d at 1083.
Graff suggests that Centurion’s policy of delaying hernia surgeries can be
inferred from nurse practitioner Merriman’s July 22, 2020, question to Graff
regarding how much time he had left to serve in prison. However, by July 22,
another nurse practitioner had already ordered a surgical consultation for Graff,
and that request was pending before Centurion authorized the consultation just two
days later, on July 24. Graff contends that another inmate “did not get surgery for
two years,” but Graff neither describes the other inmate’s circumstances nor states
that the delay occurred after July 1, 2019, when Centurion assumed responsibility
for inmate healthcare at the prison.
The district court concluded that there is “a question of fact whether Plaintiff
suffered a constitutional violation due to not being provided adequate pain relief
medications” before surgery. But even assuming that Merriman was deliberately
indifferent to Graff’s pain, the district court correctly observed that “there is no
evidence Merriman acted pursuant to a policy of Centurion; nor is there any
4 evidence that [Graff] continually sought and was denied pain medications from any
other Centurion providers from which a reasonable jury could infer that []
Merriman’s failure to provide adequate pain relief was part of a ‘permanent and
well settled’ practice of Centurion.” (quoting Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 691 (1978)).
As the district court correctly determined, there is no evidence that
Merriman acted pursuant to a policy of Centurion, or that Merriman’s failure to
provide pain relief was part of a permanent and well-settled practice or custom of
Centurion. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012)
(holding that, to prevail on a Section 1983 claim against a private entity under
Monell, the plaintiff must show that a constitutional violation “was caused by an
official policy or custom” of the private entity); Trevino v. Gates, 99 F.3d 911, 918
(9th Cir. 1996).
Graff next argues that Centurion staff were deliberately indifferent to his
medical needs by prescribing him Tylenol 3 with codeine rather than a prescription
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRYAN SCOTT GRAFF, No. 22-16182
Plaintiff-Appellant, D.C. No. 2:20-cv-01630-ROS-DMF v.
DAVID SHINN, Director; MURRIETTA, MEMORANDUM* Unknown; CO II; GUEVARRA, Unknown; CO III; HALL, Unknown; CO II; MILAGAN, Unknown; Sergeant; PEWGLESS, Unknown; CO II; DURAGO, Unknown; CO II; CHARLES L RYAN, named as: Chuck Ryan - Director of Prisons; RICHARD PRATT, Assistant Director of Prisons; UNKNOWN PARTY, named as: Jane Doe - vendor contracted in 2010; UNKNOWN PARTY, named as: Jon Doe - Director of Prisons in 2010; DIGIRO, Unknown; Movement Sgt.; MERRIMAN, Unknown; Provider; C MILBURN, Grievance Coordinator; MANSFIELD, Unknown; Grievance Coordinator CO IIII; LACY, Unknown; Maintenance; CORIZON, Out of State Vendor; CENTURION, Health Vendor; L CARR, Director of Nursing; S WRIGHT, Health Care Worker; ARTEMISA CORDOVA, NMI,
Defendants-Appellees.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Submitted June 20, 2024**
Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.
Bryan Scott Graff, an Arizona state prisoner, appeals pro se from the district
court’s judgment dismissing his claim under 42 U.S.C. § 1983 and the Eighth
Amendment for deliberate indifference to his serious medical needs against
Centurion of Arizona, LLC (Centurion). We have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s grant of summary judgment, Mendiola-
Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016), and we affirm.
“Prison officials violate the Eighth Amendment if they are ‘deliberately
indifferent to [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d
1076, 1081 (9th Cir. 2014) (en banc) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)) (cleaned up). Centurion, a private entity, provides correctional healthcare
services at Graff’s Arizona state prison and treated Graff for hernia pain in 2020.
We conclude that Graff’s hernia constituted a serious medical need, but the district
court properly determined that Graff failed to present evidence from which a
reasonable jury could conclude that Centurion was deliberately indifferent to that
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 serious medical need.
No reasonable jury could conclude based on the evidence in the summary
judgment record that Centurion “has the policy/practice of not fix[]ing hernias to
save money.” Graff first brought his hernia pain to Centurion’s attention on July 1,
2020. Within two weeks, Graff had been seen by both a nurse and a nurse
practitioner, with the latter ordering a surgical consultation at an outside medical
facility. Centurion authorized the surgical consultation, which took place on
September 21, 2020. Graff underwent hernial repair surgery on October 22, 2020,
less than four months after Graff first brought his concerns to Centurion’s
attention. These facts could not support a jury’s finding of deliberate indifference
to Graff’s serious medical needs.
Graff points out that the nurse practitioner who first saw him initially
recommended an ultrasound rather than a surgical consultation. The same
provider, however, quickly rescinded that recommendation and ordered a surgical
consultation a day later. This sequence of events does not suggest a policy of
delay or deliberate indifference to Graff’s serious medical needs.
Graff suggests that his hernia was life-threatening and that Centurion should
have authorized emergency surgery soon after his July 1, 2020, request. Record
evidence indicates that Graff’s condition did not constitute a life-threatening
emergency or warrant immediate surgery. Graff’s disagreement with his medical
3 providers, standing alone, does not create a question of deliberate indifference for a
jury. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“A difference
of opinion between a physician and the prisoner—or between medical
professionals—concerning what medical care is appropriate does not amount to
deliberate indifference.”) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir.
2012)), overruled on other grounds by Peralta, 744 F.3d at 1083.
Graff suggests that Centurion’s policy of delaying hernia surgeries can be
inferred from nurse practitioner Merriman’s July 22, 2020, question to Graff
regarding how much time he had left to serve in prison. However, by July 22,
another nurse practitioner had already ordered a surgical consultation for Graff,
and that request was pending before Centurion authorized the consultation just two
days later, on July 24. Graff contends that another inmate “did not get surgery for
two years,” but Graff neither describes the other inmate’s circumstances nor states
that the delay occurred after July 1, 2019, when Centurion assumed responsibility
for inmate healthcare at the prison.
The district court concluded that there is “a question of fact whether Plaintiff
suffered a constitutional violation due to not being provided adequate pain relief
medications” before surgery. But even assuming that Merriman was deliberately
indifferent to Graff’s pain, the district court correctly observed that “there is no
evidence Merriman acted pursuant to a policy of Centurion; nor is there any
4 evidence that [Graff] continually sought and was denied pain medications from any
other Centurion providers from which a reasonable jury could infer that []
Merriman’s failure to provide adequate pain relief was part of a ‘permanent and
well settled’ practice of Centurion.” (quoting Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 691 (1978)).
As the district court correctly determined, there is no evidence that
Merriman acted pursuant to a policy of Centurion, or that Merriman’s failure to
provide pain relief was part of a permanent and well-settled practice or custom of
Centurion. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012)
(holding that, to prevail on a Section 1983 claim against a private entity under
Monell, the plaintiff must show that a constitutional violation “was caused by an
official policy or custom” of the private entity); Trevino v. Gates, 99 F.3d 911, 918
(9th Cir. 1996).
Graff next argues that Centurion staff were deliberately indifferent to his
medical needs by prescribing him Tylenol 3 with codeine rather than a prescription
narcotic following his surgery. Graff has presented no evidence that this
medication substitution constituted deliberate indifference. The medical staff
explained to Graff that Tylenol 3 was a stronger narcotic than Norco and noted that
Tylenol 3 was “the strongest medicine that we stock for postoperative pain.”
Record evidence reflects that Tylenol 3 was an adequate substitute for Norco, and
5 the doctor’s prescription explicitly stated that substitutions were permitted.
Graff also argues that Centurion’s medical staff exhibited deliberate
indifference to his serious medical needs by failing to provide him with boxer
briefs following his surgery. Graff did not raise this argument in his response to
Centurion’s motion for summary judgment in the district court, and the district
court did not address this issue. We therefore decline to reach it. See Janes v.
Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).
Finally, Graff contends that Centurion’s failure to provide him with the same
prescription narcotic pain medication that would have been provided to a non-
prisoner violates the Equal Protection Clause of the Fourteenth Amendment.
Because Graff did not present this issue to the district court, we also decline to
address it for the first time on appeal. See id.
AFFIRMED.