The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 02 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRIAN DARNELL EDWARDS, No. 13-15875
Plaintiff - Appellant, D.C. No. 2:10-cv-03461-WBS-
KJN
v.
HIGH DESERT STATE PRISON; M. D. MEMORANDUM*
MCDONALD, Warden; R. L. GOES; T.
ROBERTSON; M. KEATING; K.
HARPES; RASKI; T. BARRON;
WEDEMEYER; CLEME; D. MOORE; T.
PEREZ; FRED FOULK, Warden; M.
MITCHELL; J. CHENEY; J. TURNER-
GAMBERY; D. SWINGLE,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Submitted August 25, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Prisoner Brian Edwards appeals the district court’s grant of summary
judgment in favor of the state with respect to his 42 U.S.C. § 1983 claims under the
Eighth and Fourth Amendments. “We review de novo the district court’s grant of
summary judgment.” Oswalt v. Resolute Indus. Inc., 642 F.3d 856, 859 (9th Cir.
2011). We affirm.
Edwards alleges that on December 23, 2008, he informed prison personnel
that he was experiencing an asthma attack, yet he waited 2.5 hours to receive
treatment. Under the Eighth Amendment, Edwards “must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.
It is only such indifference that can offend ‘evolving standards of decency’ in
violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Delay in medical treatment “must have caused substantial harm” to violate the
Eighth Amendment. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
Edwards experienced a delay of only 2.5 hours; he was able to walk on his own
volition to receive treatment; and he suffered no health effects from the incident.
No reasonable jury could conclude that Edwards experienced substantial harm.
See id. at 1333, 1335 (rejecting prisoner’s Eighth Amendment claim where he had
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to wait “several days” to see a physician after complaining of broken pins in his
shoulder).
Edwards next brings claims against three different prison officials for a May
19, 2009, incident in which he was given a used inhaler. This claim also fails to
meet the legal threshold for an Eighth Amendment violation. The undisputed
evidence shows that his inhaler was mislabeled by the pharmacy staff; however, a
claim that “a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Upon
complaining to prison personnel about the used inhaler, Edwards was released to
walk to the medical treatment facility, where he received treatment, and was given
a new inhaler the same day. Edwards produced no evidence that any of the
defendants acted with “conscious disregard of an excessive risk to [Edwards’s]
health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
Edwards claims that a prison guard decreased the hot water in his cell on an
unspecified day in June 2009, which prevented him from making soup or coffee,
and refused to allow him and his cellmate to shower on August 23, 2009. Neither
isolated incident is sufficient to show that Edwards was denied “the minimal
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civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Edwards claims that a female prison guard violated the Fourth Amendment
when the guard, who was stationed in a control tower, observed him being strip
searched by a male guard. We first held, in 2011, that a non-emergency, cross-
gender strip search violated the Fourth Amendment. Byrd v. Maricopa Cty.
Sheriff’s Dep’t, 629 F.3d 1135, 1147 (9th Cir. 2011) (en banc). The male detainee
in that case was subjected to a physically invasive cross-gender search of his
genital area. Id. at 1142. Edwards’s search involved far different circumstances
and occurred in 2009, when the constitutionality of occasional cross-gender
observation of searches was not clearly established. The female guard is therefore
entitled to qualified immunity from liability. Pearson v. Callahan, 555 U.S. 223,
231 (2009). We need not and do not consider the underlying Fourth Amendment
question.
Any other claims and arguments included within Edwards’s lawsuit are
without merit.
AFFIRMED.
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