NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 11 2011
MOLLY C. DWYER, CLERK
MATTHEW TAPLET, No. 10-35091 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 3:06-cv-00221-RRB
v.
MEMORANDUM*
LAURA BROOKS; FIRST NAME
UNKNOWN LOTHIAN; FIRST NAME
UNKNOWN STALLMAN; JOHN
WELLS; CHRIS MCMICHAEL,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Submitted May 4, 2011**
Anchorage, Alaska
Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.
Plaintiff-Appellant Matthew Taplet appeals the district court’s grant of
summary judgment dismissing his suit under 42 U.S.C. § 1983, which alleged that
*
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).
prison officials exhibited deliberate indifference to his serious medical needs by
failing to diagnose him with schizophrenia and to prescribe appropriate treatment.
To prove deliberate indifference, a § 1983 plaintiff must show (1) “a serious
medical need by demonstrating that failure to treat a prisoner’s condition could
result in further significant injury or the unnecessary and wanton infliction of
pain,” and (2) that the “defendant’s response to the need was deliberately
indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal
quotation marks omitted).
Taplet introduced (1) his medical records, which show that he has been
diagnosed with schizophrenia in the past (though he has also been labeled a
malingerer), (2) a preliminary expert report that lists the credentials of Taplet’s
expert witness and articulates the standard of care for prisoners suffering from
mental health conditions, and (3) Taplet’s own allegations claiming that prison
officials exhibited deliberate indifference to his medical condition. Viewing the
evidence in the light most favorable to Taplet, see Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004), we conclude that Taplet’s conflicting
medical records are sufficient to demonstrate a genuine issue of material fact over
whether he had a “serious medical need.”
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However, Taplet has not introduced sufficient evidence to support his claim
that the prison officials’ response to his alleged condition was deliberately
indifferent. Although his preliminary expert report outlines the proper standard of
care owed prisoners by prison officials, it explicitly did not “offer an opinion on
the diagnosis or prognosis of the plaintiff,” nor did it claim that the standard of
care was violated in this case. The expert explicitly stated that he had “reviewed
no materials related to the plaintiff.” Only Taplet’s own allegations support his
claim of deliberate indifference, and “conclusory assertions are insufficient to
avoid summary judgment.” Clouthier v. County of Contra Costa, 591 F.3d 1232,
1252 (9th Cir. 2010).
Finally, the district court did not abuse its discretion by declining to give
Taplet additional opportunities for discovery. Taplet never submitted an affidavit
setting forth the facts he sought to uncover, that those facts existed, and that they
were essential to opposing summary judgment; this failure “‘is a proper ground for
denying discovery and proceeding to summary judgment.’” Family Home & Fin.
Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)
(quoting Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d
772, 779 (9th Cir. 1998)).
AFFIRMED.
3