Jamisi Calloway v. Ronald Davis

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2023
• Docket: 21-16638
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMISI JERMAINE CALLOWAY, No. 21-16638

Plaintiff-Appellant, D.C. No. 4:19-cv-06758-JSW

v. MEMORANDUM* RONALD DAVIS, Warden; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted February 6, 2023 San Francisco, California

Before: WALLACE, FERNANDEZ, SILVERMAN, Circuit Judges.

Jamisi Calloway appeals pro se from the district court’s summary judgment.

We have jurisdiction pursuant to 28 U.S.C. § 1291. This court reviews a district

court’s summary judgment de novo. See Sulyma v. Intel Corp. Inv. Policy Comm.,

909 F.3d 1069, 1072 (9th Cir. 2018). This court reviews a district court’s denial to

appoint counsel and a district court’s denial of a motion to compel for abuse of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. discretion. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Sorosky v.

Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987). Last, this court reviews a

district court’s dismissal of claims under 28 U.S.C. § 1915A de novo. See Byrd v.

Maricopa Cnty. Bd. of Supers., 845 F.3d 919, 922 (9th Cir. 2017). We affirm.

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

claim of deliberate indifference to a serious medical need. Calloway’s discontent

with the location of his dialysis treatment does not amount to a violation of the

Eighth Amendment. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (“A

difference of medical opinion does not amount to deliberate indifference[.]”). Nor

did Calloway produce sufficient evidence to establish that the Appellees

affirmatively placed him in danger when selecting the location of his treatment. See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006). To the extent

that Calloway alleges that he suffered any delay in receiving treatment, Calloway

did not produce summary judgment evidence that the Appellees caused him

significant harm. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

Last, the use of restraints on Calloway while he received medical treatment did not

amount to deliberate indifference because such restraints were for the medical staff’s

safety. See LeMaire v. Maass, 12 F.3d 1444, 1457, 1460 (9th Cir. 1993).

The district court did not abuse its discretion in denying Calloway’s motions

to compel, as Calloway failed to make a “clearest showing that denial of discovery

2 result[ed] in actual and substantial prejudice.” Hallett v. Morgan, 296 F.3d 732, 751

(9th Cir. 2002). Moreover, the district court did not abuse its discretion in denying

Calloway’s Federal Rule of Civil Procedure 56(d) motion, as Calloway failed to

identify the “specific facts” that he sought and why those facts were essential to his

opposition to summary judgment. See Stevens v. Corelogic, Inc., 899 F.3d 666, 677–

78 (9th Cir. 2018).

The district court did not abuse its discretion in denying Calloway’s motion

for the appointment of counsel, as Calloway did not establish that “exceptional

circumstances” warranted such an appointment. See Terrell v. Brewer, 935 F.2d

1015, 1017 (9th Cir. 1991).

To the extent that Calloway challenges the screening of his complaint, the

district court did not err in the dismissal of his retaliation claim as Calloway did not

sufficiently allege that he was retaliated against because of any protected conduct.

See Brodheim v. Cry, 584 F.3d 1262, 1269–71 (9th Cir. 2009).

Any issues raised for the first time on appeal are waived. See United States v.

Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).

All pending motions are denied.

AFFIRMED.