Keenan Wilkins v. Barber

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 2025
• Docket: 23-15511
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 4 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEENAN G. WILKINS, No. 23-15511

Plaintiff-Appellant, D.C. No. 2:19-cv-01338-WBS-KJN v.

BARBER, First Name Unknown, Doctor; MEMORANDUM* S. GATES; R. RECAREY, Chief Executive Officer; ANISE ADAMS, Chief Executive Officer; R. SINGH, Chief Physician; MANSOUR, First Name Unknown, Doctor; AHMID DREDAR, Doctor,

Defendants-Appellees,

and

CHRISTINE ESCOBAR; SPECIAL APPEARANCE,

Defendants.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 4, 2025**

Before: S.R. THOMAS, SILVERMAN, and N.R. SMITH, Circuit Judges.

Plaintiff appeals the district court’s judgment in favor of the defendants in

his prisoner civil rights action. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the grant of summary judgment de novo, Toguchi v. Chung, 391 F.3d

1051, 1056 (9th Cir. 2004), and affirm.

Summary judgment was proper for the defendant doctors, including Dr.

Barber, Dr. Mansour, and Dr. Dredar, on plaintiff’s Eighth Amendment deliberate

indifference claim. At most, plaintiff established a difference of medical opinion

between himself and the doctors and medical expert regarding testing, treatment,

and the type of pain medication ordered by the doctors. Such a difference of

opinion does not rise to the level of deliberate indifference. Estelle v. Gamble, 429

U.S. 97, 107 (1976); Toguchi, 391 F.3d at 1058.

Plaintiff failed to offer sufficient evidence to establish that Dr. Barber acted

with deliberate indifference after she referred plaintiff to the prison’s pain-

management committee. Medical records establish that plaintiff consistently

refused to see the doctor after receiving a referral. As soon as the doctor was

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 informed that plaintiff had not been seen by the pain committee, the doctor

contacted Medical Administration and asked medical staff to assist plaintiff. See

Farmer v. Brennan, 511 U.S. 825, 837–38 (1994) (deliberate indifference is not

established “unless the official knows of and disregards and excessive risk to

inmate health or safety”).

Summary judgment was proper on the retaliation claim alleged against Dr.

Barber. Plaintiff failed to establish that the doctor took adverse action against

plaintiff because he threatened to sue her or that her actions did not advance

legitimate security goals. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

2005) (setting forth the standard); Nev. Dept. of Corr. v. Greene, 648 F.3d 1014,

1018 (9th Cir. 2011) (noting that “[i]nstitutional security is a legitimate

correctional goal”).

Summary judgment was proper for the administrators and grievance officials

on the claim alleging that they acted with deliberate indifference to plaintiff’s

serious medical needs when they reviewed the grievances and records related to

care by the defendant doctors. See Farmer, 511 U.S. at 844 (officials are not liable

if they “responded reasonably”); Peralta v. Dillard, 744 F.3d 1076, 1087 (9th Cir.

2014) (en banc) (administrative officials who lack relevant medical expertise do

not act with deliberate indifference when they rely on the opinions of qualified

3 medical personnel). No evidence in the record supports plaintiff’s assertions that

defendants falsified all of the records in this case.

Plaintiff’s argument that the district court erred by not liberally construing

his motion papers and pleadings is unavailing. While “courts should construe

liberally motion papers and pleadings filed by pro se inmates and should avoid

applying summary judgment rules strictly,” Thomas v. Ponder, 611 F.3d 1144,

1150 (9th Cir. 2010), the pro se prisoner must nevertheless “identify or submit

some competent evidence” that would preclude summary judgment, see Soto v.

Sweetman, 882 F.3d 865, 872 (9th Cir. 2018). The district court correctly applied

the relevant standards in finding that plaintiff had not identified sufficient evidence

to avoid summary judgment.

Plaintiff waived the claims against Defendant Escobar when he declined to

amend his complaint and voluntarily dismissed her from the action. See First

Resort Inc. v. Herrera, 860 F.3d 1263, 1274 (9th Cir. 2017) (claims that are

dismissed with leave to amend and not repled are waived); Sneller v. City of

Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010) (generally a party cannot

appeal a voluntary dismissal without prejudice). Plaintiff has not established that

the district court erred in dismissing defendant Le from the Second Amended

Complaint, as the pleadings do not allege sufficient facts to show deliberate

4 indifference. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (conclusory

allegations do not state a claim); Farmer, 511 U.S. at 837–83 (setting forth the

deliberate indifference standard).

The district court had the discretion to dismiss the state law claims, as it had

disposed of the federal claims. 28 U.S.C. § 1367(c)(3).

Plaintiff’s motion for judicial notice (Dkt. Entry No. 39) is DENIED. The

relevant records are already part of the record in this case.

AFFIRMED.