John Pokras v. J. Lewis

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2018
• Docket: 18-55695
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN R. POKRAS, No. 18-55695

Plaintiff-Appellant, D.C. No. 2:17-cv-06603-JVS-GJS

v. MEMORANDUM* J. LEWIS; S. MORRIS,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

John R. Pokras, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to a serious medical need. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010).

* 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). We affirm.

The district court properly dismissed Pokras’s action because Pokras failed

to allege facts sufficient to show that defendants disregarded an excessive risk to

his serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir.

2004) (a prison official is deliberately indifferent only if he or she knows of and

disregards an excessive risk to inmate health; a mere difference of opinion in

treating a medical condition does not amount to deliberate indifference).

The district court did not abuse its discretion by denying Pokras leave to file

an amended complaint because amendment would have been futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review and explaining that dismissal without leave to

amend is proper when amendment would be futile).

Pokras’s appeal of the denial of his motion for preliminary injunctive relief

is moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1449-50 (9th

Cir. 1992) (when underlying claims have been decided, reversal of denial of

preliminary injunctive relief would have no practical consequences, and the issue

is therefore moot).

Pokras’s opposed motion for leave to file an appendix (Docket Entry No. 11)

2 18-55695 is denied. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990)

(“Documents or facts not presented to the district court are not part of the record on

appeal.”).

AFFIRMED.

3 18-55695