Van Court v. Lehman

137 F. App'x 948

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 2005
• Docket: No. 04-35815; D.C. No. CV-02-01142-JCC
• Status: Published

Opinion

MEMORANDUM

**

Billy Van Court, a Washington State prisoner, appeals pro se from the district court’s summary judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging that prison officials were deliberately indifferent to his safety by failing to protect him from attack by another inmate, and failing to provide adequate medical care for his resulting injuries. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc), and we affirm.

The district court properly granted summary judgment on Van Court’s claim that defendants failed to protect him from attack by another inmate during a sex-offender treatment program group meeting, because the evidence does not create a genuine issue of material fact as to whether defendants should have foreseen this attack. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (holding that to act with deliberate indifference, a prison official must be aware of facts from which he could infer the existence of a substantial risk of serious harm).

The district court also properly-granted summary judgment on Van Court’s claim that defendants denied and delayed his medical treatment for his resulting head injuries and broken nose in violation of the Eighth Amendment. The evidence shows that following the incident, Van Court was seen several times by a prison physician, and was referred to an optometrist, an opthamologist, a neurologist, and an ear, nose, and throat specialist. Over a 3-year period, he received pain medication, x-rays, a CT scan, and surgery on his nose. Although Van Court may have a difference of opinion regarding the proper treatment of his injuries and headaches, this difference does not constitute an Eighth Amendment violation. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).

Moreover, although Van Court did not receive pain medication until a day after the attack, this delay is insufficient to demonstrate deliberate indifference to a serious medical need. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (1997) (en banc) (“A finding that the defendant’s neglect of a prisoner’s condition was an ‘isolated occurrence,’ or an ‘isolated exception,’ to the. defendant’s overall treatment of the prisoner ordinarily militates against a finding of deliberate indifference.”) (internal citations omitted); see also Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980) (per curiam) (noting mere indifference, medical malpractice, or negligence will not support a cause of action under the Eighth Amendment).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.