Daniel v. Harway

141 F. App'x 624

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 5, 2005
• Docket: No. 04-57100; D.C. No. CV-02-06580-DSF
• Status: Published

Opinion

MEMORANDUM

**

Peter L. Daniel, a former California state prisoner, appeals pro se the district court’s partial dismissal and partial summary judgment in favor of the defendants in his 42 U.S.C. § 1983 action alleging that prison officials were deliberately indifferent to his medical needs and violated the public services provisions of the Americans with Disabilities Act (“ADA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998) (summary judgment); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996) (dismissal). We affirm.

Dismissal of Daniel’s claims against the prison doctors was proper because Daniel’s disagreement as to his treatment plan does not rise to the level of an Eighth Amendment violation. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).

The district court properly granted summary judgment to Dr. McAdams because Daniel failed to create a genuine issue of material fact as to whether Dr. McAdams was acting under color of state law when he conducted an independent medical examination pursuant to Daniel’s request. See Blum v. Yaretsky, 457 U.S. 991, 1011-12, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).

Daniel’s remaining contentions lack merit.

We deny all pending motions.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.