Frank Rust v. A. Muhammed

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 10, 2020
• Docket: 19-55700
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANK A. RUST, AKA Frank Andrew No. 19-55700 Rust, D.C. No. Plaintiff-Appellant, 5:17-cv-00556-JAK-KES

v. MEMORANDUM* A. FAROOQ MUHAMMED, Dr.; MICHAEL VU, Dr.,

Defendants-Appellees,

and

CHINO PRISON HEALTHCARE PROVIDERS; MICHAEL WARFIELD; S. OCEGURA; T. MOLL; L. ESCOBELL,

Defendants.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted November 6, 2020** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

Rust appeals from the district court’s grant of summary judgment in favor of

Doctors Vu and Farooq on Rust’s 42 U.S.C. § 1983 claims. Because the facts are

known to the parties, we repeat them only as necessary to explain our decision.

I

The district court did not err in granting summary judgment on Rust’s claims

related to the denial of his request for a cervical pillow.

A

The record demonstrates that the request was denied because Dr. Vu found a

cervical pillow to be medically unnecessary based on his observations upon

physically examining Rust. Rust failed to rebut Dr. Vu’s medical opinion with

countervailing evidence, and the record does not suggest that the failure to give

Rust a cervical pillow “was medically unacceptable under the circumstances, [or]

was chosen in conscious disregard of an excessive risk to [Rust’s] health.”

Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (internal quotation marks

omitted).

B

Rust’s request for a pillow could not have been denied because of or in

retaliation for his grievance filed against Warfield, because the request was denied

several days before the incident with Warfield even occurred. See Rhodes v.

2 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

II

Rust cannot show that the doctors violated the Eighth Amendment for failing

to protect him from a substantial risk of harm caused by Warfield’s verbal

comments because the record does not suggest that Rust ever suffered or was

threatened with “objectively, sufficiently serious” harm as a result of such

comments. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation

marks omitted); see also Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012);

Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996).

III

Reversal is not warranted on the basis of Rust’s mailroom “sub claim,”

because Rust has not pled any such claim—or named as defendants any individuals

supposedly responsible for prison mail processing—in this case. See, e.g.,

Synagogue v. United States, 482 F.3d 1058, 1060 n.4 (9th Cir. 2007) (plaintiff may

not remand a case to add a cause of action where the plaintiff “neither relied on

this proposed cause of action below nor sought leave of the district court to amend

[his] complaint to add it”).1

AFFIRMED.

1 The appellant’s motion for judicial notice, filed with this court on July 5, 2019, is GRANTED. The appellees’ motion for judicial notice, filed with this court on February 13, 2020, is DENIED as moot.