Dexter Brown v. Sahir Naseer

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 5 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEXTER BROWN, No. 16-17073

Plaintiff-Appellant, D.C. No. 2:14-cv-00225-WBS-

CKD

v.

SAHIR NASEER, M.D., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Submitted September 26, 2017**

Before: SILVERMAN, TALLMAN, and N. R. SMITH, Circuit Judges.

California state prisoner Dexter Brown appeals pro se from the district

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

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

*

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).

2004). We affirm.

The district court properly granted summary judgment because Brown failed

to raise a genuine dispute of material fact as to whether Dr. Naseer was

“subjectively aware” that his failure to order requested testing and his order to

restrict Brown’s fluid intake “created a substantial risk of harm” to Brown. See id.

at 1060; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[A] complaint 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.”);

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (difference of opinion

between prisoner and medical staff does not give rise to a deliberate indifference

claim).

We reject as unsupported by the record Brown’s contention that he alleged a

due process claim.

AFFIRMED.

2 16-17073