James Rojo v. Darren Bright

671 F. App'x 644

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2016
• Docket: 15-16703
• Status: Unpublished

Opinion

MEMORANDUM **

James Ernest Rojo, a California state prisoner, appeals pro se from the district court’s judgment in his action under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novó. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We may affirm on any basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 930, 933 (9th Cir. 2004). We affirm.

Summary judgment on Rojo’s deliberate indifference claim was proper because Rojo failed to raise a genuine dispute of material fact as to whether defendant Bright was deliberately indifferent in treating Rojo’s mobility problems. See Toguchi, 391 F.3d at 1057-60 (a prison official acts with deliberate indifference only if he or she knows of and disregards an excessive risk to the prisoner’s health; negligence, medical malpractice, or a difference in opinion are insufficient to establish deliberate indifference).

The district court properly dismissed Rojo’s ADA claim because Rojo failed to allege facts sufficient to show that defendants failed to act on Rojo’s need for an accommodation. See Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (a “deliberate indifference” standard applies to actions seeking compensatory damages under Title II of the ADA, requiring “both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.