NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DONALD D’AMICO, No. 13-15523
Plaintiff - Appellant, D.C. No. 3:11-cv-00860-RCJ-VPC
v.
MEMORANDUM*
ROBERT B. BANNISTER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Chief Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Nevada state prisoner Donald D’Amico 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, 1056 (9th Cir. 2004),
*
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).
and we affirm.
The district court properly granted summary judgment because D’Amico
failed to establish a genuine dispute of material fact as to whether defendants acted
with deliberate indifference by not providing him with physical therapy. See id. at
1057-58 (prison officials act with deliberate indifference only if they know of and
disregard an excessive risk to inmate health; neither a prisoner’s difference of
opinion concerning the course of treatment nor mere negligence in diagnosing or
treating a medical condition amounts to deliberate indifference).
Moreover, even though D’Amico submitted his opposition brief to
defendants’ motion for summary judgment after the magistrate judge issued its
report and recommendation, the district court noted in its order that it had
considered all relevant filings. Accordingly, we reject D’Amico’s contention that
the district court did not consider his opposition brief.
AFFIRMED.
2 13-15523