Joe Stang v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 18-35392
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOE DEE STANG, No. 18-35392

Plaintiff-Appellant, D.C. No. 3:15-cv-02318-YY

v. MEMORANDUM* UNITED STATES OF AMERICA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Submitted February 19, 2019**

Before: TROTT, FERNANDEZ, and WATFORD, Circuit Judges.

Joe Dee Stang, a federal prisoner, appeals pro se from the district court’s

summary judgment in his action brought under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort

Claims Act (“FTCA”), alleging deliberate indifference to his serious medical needs

* 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). and negligence. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

The district court properly granted summary judgment on Stang’s Bivens

claim because Stang failed to raise a genuine dispute of material fact as to whether

defendants were deliberately indifferent to Stang’s dental needs. See id. at 1057-

60 (a prison official is deliberately indifferent only if he or she knows of and

disregards an excessive risk to inmate health; medical malpractice, negligence, or a

difference of opinion concerning the course of treatment does not amount to

deliberate indifference); see also Wilhelm v. Rotman, 680 F.3d 1113, 1122 ( 9th

Cir. 2012) (deliberate indifference requires showing a purposeful act or failure to

respond to prisoner’s pain or possible medical need and harm caused by the

indifference).

The district court properly granted summary judgment on Stang’s negligence

claim because Stang offered no expert testimony to establish the standard of care

as required by Oregon law. See Liebsack v. United States, 731 F.3d 850, 854-57

(9th Cir. 2013) (state substantive law applies in FTCA actions); Trees v. Ordonez,

311 P.3d 848, 854 (Or. 2013) (in medical malpractice cases, expert testimony is

generally required to establish the standard of care).

AFFIRMED.