FILED
NOT FOR PUBLICATION DEC 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH L. MIZZONI, No. 12-17779
Plaintiff - Appellant, D.C. No. 3:11-cv-00632-LRH-
WGC
v.
DEBRA BROOKS; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
California state prisoner Joseph L. Mizzoni appeals pro se from the district
court’s dismissal order and summary judgment in his 42 U.S.C. § 1983 action
alleging deliberate indifference, retaliation, and other claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo both a dismissal under 28 U.S.C.
*
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).
§1915(A), Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and summary
judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm
on any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP,
534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal of Mizzoni’s deliberate indifference claim related to unsanitary
conditions in his cell was proper because, by alleging that prison officials cleaned
his cell to the best of their ability after he complained, Mizzoni essentially
conceded that defendants did not know of or consciously disregard a serious risk to
Mizzoni arising from an unclean cell. See Farmer v. Brennan, 511 U.S. 825, 835-
37 (1994) (setting forth standard for deliberate indifference, and stating that prison
officials cannot be liable unless they know of and disregard an excessive risk to
inmate health or safety); Toguchi, 391 F.3d at 1057-58 (negligence is not sufficient
to state a deliberate indifference claim).
The district court properly dismissed Mizzoni’s deliberate indifference claim
related to delay in the treatment of his genital rash because Mizzoni failed to allege
facts showing that the delay resulted in further significant injury or the wanton
infliction of pain, and because Mizzoni’s disagreement about the prescribed
ointments does not give rise to an Eighth Amendment violation. See Hallett v.
Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002) (delay in providing care does not
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constitute deliberate indifference unless inmate suffers significant harm as a
result); Toguchi, 391 F.3d at 1058 (inmate’s disagreement with physician
regarding his treatment does not amount to deliberate indifference).
The district court properly granted summary judgment on Mizzoni’s
retaliation claim because Mizzoni failed to raise a genuine dispute of material fact
as to whether defendants acted with retaliatory intent in transferring him to the
prison’s mental health infirmary for observation on two occasions, or that their
actions failed to reasonably advance legitimate correctional goals. See Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (setting forth elements of
retaliation claim in the prison context).
We do not consider Mizzon’s argument, raised for the first time on appeal,
regarding the allegedly erroneous payment of his filing fees from a “money gift
coupon” in his inmate trust account. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009) (per curiam).
AFFIRMED.
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