FILED
NOT FOR PUBLICATION JAN 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL SHAW FAUSETT, No. 11-16022
Plaintiff - Appellant, D.C. No. 2:08-cv-01724-RLH-
VPC
v.
LEBLANC, Registered Nurse; KELLY MEMORANDUM*
MARTINEZ, Registered Nurse; NALE
BORU, Doctor; GALLOWAY, Doctor;
NASEER, Doctor,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted December 5, 2013
San Francisco, California
Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.
California state prisoner Michael Shaw Fausett appeals from the district
court’s order granting summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his post-surgical medical needs. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004), and we affirm.
Because the facts and circumstances of this case are well known to the
parties and were fully aired during oral argument, we need not repeat them in detail
here.
The district court properly granted summary judgment because Fausett failed
to raise a genuine dispute of material fact as to whether defendants’ treatment of
Fausett’s medical needs following his spinal fusion surgery constituted deliberate
indifference. See id. at 1056-57 (prison officials act with deliberate indifference
only if they know of and disregard an excessive risk to inmate health; a difference
of opinion concerning the appropriate course of treatment does not amount to
deliberate indifference). We note that although the prison physician’s orders did
include a walker for use in-house and a wheelchair for movement across longer
distances, neither Fausett’s discharge orders from the hospital nor his doctor’s
orders recommended either a walker or a wheelchair. The decision not to provide
Fausett with Valium as prescribed, but instead to provide substitute medicine along
with other pain medication, did not constitute deliberate indifference.
The district court did not abuse its discretion by denying Fausett’s motion to
amend his complaint, which was filed after discovery was closed. See Ascon
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Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (leave to amend
need not be granted where amendment of the complaint would cause the opposing
party undue prejudice or create undue delay).
The district court did not abuse its discretion in denying Fausett’s motion for
appointment of counsel because Fausett failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
The district court did not abuse its discretion in denying Fausett’s motion to
appoint an expert because Fausett’s claims did not involve complex issues or
evidence. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d
1065, 1070 (9th Cir. 1999) (appointment of expert is reviewed for abuse of
discretion).
Fausett’s contentions regarding alleged procedural errors by the district
court involving, inter alia, the use of a magistrate judge have no merit. All
substantive decisions involving Fausett’s case were made by District Court Judge
Roger L. Hunt, not Magistrate Judge Valerie P. Cooke.
AFFIRMED.
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