The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORY DEWAYNE MICENHEIMER, No. 18-56490
Plaintiff-Appellant, D.C. No.
2:16-cv-04314-CJC-JEM
v.
P. FINANDER, Chief Medical Executive, MEMORANDUM*
individual; S. MORRIS, Chief Physician and
Surgeon, individual; P. SHANK, Chief
Executive Officer, Health Care, individual;
M. RABANIPOUR, an individual; JOHN
DOE, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 1, 2019**
Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.
Cory Micenheimer appeals from the district court’s grant of summary
judgment in favor Dr. M. Rabanipour, Dr. P. Finander, Dr. P. Shank, and Dr. S.
*
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).
Morris (“prison officials”), finding that they were not deliberately indifferent to his
medical needs regarding the injuries to his knee and finger and that they were
entitled to qualified immunity. The facts of this case are known to the parties, and
we do not repeat them here.
I
The district court did not err in granting summary judgment on
Micenheimer’s Eighth Amendment claim relative to his knee. Micenheimer has
made no showing that prison officials acted with deliberate indifference to his
medical needs in denying his request to see an orthopedist for further treatment of
his knee. See Helling v. McKinney, 509 U.S. 25, 32 (1993). It is undisputed that
Dr. Rabanipour treated Micenheimer’s knee on multiple occasions after his return
from Palmdale Regional Medical Center, and Micenheimer testified this treatment
was professional and excellent. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004). Dr. Rabanipour determined there was no swelling or redness, that
Micenheimer could perform his daily activities without difficulty, and, therefore, it
was not medically necessary for him to see an orthopedist. At most, there is a
difference of opinion in appropriate medical treatment, which is insufficient to
constitute deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989). Because Dr. Rabanipour is not liable, the other prison officials, who never
treated Micenheimer, are not liable either since there can be no liability under §
2
1983 where there is no underlying constitutional violation, Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010), and a § 1983 claim cannot be
premised on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662,
675-77 (2009).
II
The district court did not err in granting summary judgment on
Micenheimer’s Eighth Amendment claim relative to his finger. It is undisputed
that Micenheimer did not submit an appeal regarding the treatment of his finger
until three months after he had been treated by Dr. Rabanipour, which is more than
the fifteen-day deadline to file such appeals. See Harvey v. Jordan, 605 F.3d 681,
683 (9th Cir. 2010). Because Micenheimer did not exhaust all possible
administrative remedies, his claim is barred. See Booth v. Churner, 532 U.S. 731,
741 (2001). However, even if such claim were not barred because of untimeliness,
Micenheimer has made no showing that prison officials acted with deliberate
indifference to his medical needs in denying his request for surgery to treat his
finger injury. See Helling v. McKinney, 509 U.S. 25, 32 (1993). It is undisputed
that at Palmdale Regional Medical Center, his finger was put back into place so
that he had full range of motion, and upon his return, he received follow-up
treatment by prison medical officials. Again, at most, there is a difference of
opinion which does not constitute deliberate indifference. See Sanchez, 891 F.2d
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at 242 (9th Cir. 1989). Micenheimer failed to show deliberate indifference here as
well.
III
The district court did not err in granting summary judgment in favor of
prison officials based on qualified immunity. Viewing the evidence in the light
most favorable to Micenheimer, it would not have been clear to a reasonable
medical doctor, that by reaching certain medical opinions and prescribing certain
treatment based upon examinations of the injured knee and finger, he was engaging
in conduct that violated clearly established law. See Hamby v. Hammond, 821 F.3d
1085, 1092-94 (9th Cir. 2016). Therefore, the district court properly concluded
that prison officials were entitled to qualified immunity and correctly granted
summary judgment in their favor.
AFFIRMED.
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