Raymond Whitall v. Vaun Munk

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 7, 2023
• Docket: 21-16797
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAYMOND RICHARD WHITALL, No. 21-16797

Plaintiff-Appellant, D.C. No. 3:20-cv-03415-CRB

v. MEMORANDUM* VAUN C. MUNK; RAFAEL CHUAPOCO; S. GATES, Chief, Healthcare Correspondence and Appeals Branch; B. OMOSAIYE; ARTHUR MAJOR, D.D.S.; D. CALDWELL, CHSA II; K. JEMISON, Healthcare Correspondence and Appeals Branch; S. RIVERA, M.D. Chief Executive Officer; L. NGUYEN, DMD; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; MATT ATCHLEY, Warden; DOES, I-XX, Dental Authorization Review Committee and/or Dental Program Health Care Review Committee Members; S. SAWYER, Correctional Health Services Administrator; T. NG, DDS,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted July 5, 2023**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Raymond Richard Whitall, a California state prisoner, appeals pro se from

the district court’s summary judgment in his action alleging violations of the

Eighth Amendment, as well as the Americans with Disabilities Act (“ADA”) and

the Rehabilitation Act (“RA”). We have jurisdiction under 28 U.S.C. § 1291. We

review de novo, see Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and

we affirm.

The district court properly granted summary judgment to defendants on

Whitall’s Eighth Amendment claim alleging deliberate indifference to his dental

needs, because Whitall failed to raise a genuine dispute of material fact as to

whether defendants’ treatment choices were medically unacceptable, and chosen in

conscious disregard of an excessive risk to Whitall’s health. Id. at 1058 (in order

to prevail on a claim involving choices between alternative courses of treatment, a

prisoner must show that the chosen course of treatment was medically

unacceptable under the circumstances, and chosen in conscious disregard of an

excessive risk to the prisoner’s health).

On appeal, Whitall argues that the question of whether his treatment was

medically unacceptable should be presented to a jury. However, Whithall has not

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 presented evidence that the defendants’ treatment was medically unacceptable, and

so summary judgment for the defendants was appropriate. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986) (plaintiff’s complete failure of proof

concerning an essential element of his case necessarily renders all other facts

immaterial).

The district court properly granted summary judgment to defendants on

Whitall’s ADA and RA claims because the defendants’ treatment choices cannot

form the basis of an ADA claim. See Simmons v. Navajo County, Ariz., 609 F.3d

1011, 1022 (9th Cir. 2010) (the ADA is not violated by prison’s failure to attend to

medical needs of disabled prisoners), overruled on other grounds by Castro v.

County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); Zukle v. Regents

of Univ. of Calif., 166 F.3d 1041, 1045 and n.11 (9th Cir. 1999) (listing elements

of a prima facie claim under the Rehabilitation Act; “There is no significant

difference in analysis of the rights and obligations created by the ADA and the

Rehabilitation Act.”).

The district court did not abuse its discretion when it dismissed Whitall’s

related state law claims without prejudice because it had granted summary

judgment on Whitall’s federal claims. See Ove v. Gwinn, 264 F.3d 817, 826 (9th

Cir. 2001) (standard of review; court may decline to exercise supplemental

jurisdiction over related state law claims once it has dismissed all claims over

3 which it has original jurisdiction).

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

a preliminary injunction because Whitall failed to establish a likelihood of success

on the merits, or that he had raised a serious question going to the merits. See

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)

(stating requirements for a preliminary injunction).

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

appoint counsel because Whitall failed to establish any extraordinary

circumstances warranting the appointment of counsel. See, e.g., Terrell v. Brewer,

935 F.2d 1015, 1017 (9th Cir. 1991) (district court did not abuse its discretion in

denying counsel for prisoner where prisoner demonstrated sufficient writing ability

and legal knowledge to articulate his claim; facts alleged and issues raised were not

of substantial complexity; and it was extremely unlikely that prisoner would

succeed on the merits).

The district court did not abuse its discretion in awarding costs to the

defendants because defendants are entitled to recoup their costs in taking Whitall’s

deposition. See 28 U.S.C. § 1920; Draper v. Rosario, 836 F.3d 1072, 1087-89 (9th

Cir. 2016) (factors to be weighed in reviewing an award of costs); Alflex Corp. v.

Underwriters Laboratories, Inc., 914 F.2d 175, 176 n.3, 177 (9th Cir. 1990).

AFFIRMED.