FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERIC DUARTE, No. 08-17332
Plaintiff - Appellant, D.C. No. 5:05-cv-01374-JF
v.
MEMORANDUM *
HARPREET GILL; MARTYN BEVAN,
Defendants - Appellees,
and
LAURA SMITH, et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, 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. Fed. R. App. P. 34(a)(2).
Eric Duarte, a California state prisoner, appeals pro se from the district
court’s summary judgment in favor of prison officials in his 42 U.S.C. § 1983
action alleging violations of the Eighth Amendment arising from inadequate and
delayed medical treatment following a foot injury suffered while he was playing
handball in the prison recreational yard. We have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s summary judgment. Morrison v. Hall,
261 F.3d 896, 900 (9th Cir. 2001). We affirm.
The district court properly entered summary judgment because Duarte failed
to establish the existence of a genuine issue of fact that either defendants Gill or
Bevan acted with deliberate indifference by requiring him to walk, at times
unassisted, on his broken foot. See Conn v. City of Reno, 572 F.3d 1047, 1055–56
(9th Cir. 2009). There is insufficient evidence from which an inference could be
drawn that a substantial risk of serious harm existed by requiring Duarte to walk
relatively short distances on his injured foot. Moreover, the evidence is
insufficient to support a finding that either Gill or Bevan actually believed that
there was a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825,
837 (1994). Thus, Duarte failed to demonstrate a genuine issue of fact regarding
either defendants’ subjective awareness of a substantial risk of serious harm. See
Conn, 572 F.3d at 1056; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976).
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Moreover, there is insufficient evidence that either Gill or Bevan failed to respond
adequately to Duarte’s condition. See Conn, 572 F.3d at 1056, 1058. Duarte was
seen by the prison nurse within one hour after his injury, and was examined and
treated at the hospital the next day.
Duarte’s failure to satisfy his burden of showing that Gill was subjectively
aware of a serious medical need, or that he failed to respond adequately to Duarte’s
injury, entitles Gill to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2).
Moreover, because the evidence is similarly deficient as to Bevan, Duarte has
failed to demonstrate a triable issue that Bevan’s conduct violated the Eighth
Amendment. Therefore, the district court properly held that Bevan was entitled to
qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
AFFIRMED.
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