NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JASON RYAN MCDERMOTT, No. 14-35343
Plaintiff - Appellant, D.C. No. 3:11-cv-00331-BLW
v.
MEMORANDUM*
MATTHEW VALLEY; KIM MILLER;
DIANE KAUFMANN; LINDA GHERKE;
JAN EPP; CLAYTON BUNT; BRUCE
COOPER; PHILLIP PETERSEN;
BENTLY; RORY YORK,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted August 14, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, Circuit Judges.
*
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).
Jason McDermott appeals the district court’s grant of summary judgment for
defendant prison medical officials on his 42 U.S.C. § 1983 claim. McDermott
alleges that defendants violated the Eight Amendment by demonstrating deliberate
indifference to his persistent constipation. Reviewing de novo and viewing the
evidence in the light most favorable to McDermott, we conclude there is no
genuine issue of material fact and affirm. See Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004).
McDermott has failed to show “deliberate indifference to [his] serious
medical needs,” as is required under the Eighth Amendment. Estelle v. Gamble,
429 U.S. 97, 104 (1976). First, although we do not discount his complaints, he has
not demonstrated that his medical need—constipation—is serious because there is
no evidence “that failure to treat it will result in significant injury or the
unnecessary and wanton infliction of pain.” Peralta v. Dillard, 744 F.3d 1076,
1081 (9th Cir. 2014) (en banc) (internal quotation marks omitted). McDermott has
not produced any evidence beyond bare allegations that his constipation rises to the
level of a serious medical need.
Second, McDermott has failed to show that “[a] prison official [was]
deliberately indifferent to [his] need [in that the official] kn[ew] of and
disregard[ed] an excessive risk to inmate health.” Id. at 1082 (internal quotation
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marks omitted). To the contrary, the record reflects that McDermott received
continual medical care and that prison medical officials attempted to address his
concerns through various diagnostic tests and treatment plans. McDermott offers
no support for his claim that he is constitutionally entitled to be treated with brand
name, as opposed to generic, Metamucil as he demands.
AFFIRMED.
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