FILED
NOT FOR PUBLICATION MAR 31 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALWIN SMITH, No. 09-15265
Plaintiff - Appellant, D.C. No. 1:06-cv-01124-NVW
v.
MEMORANDUM *
CALIFORNIA SUBSTANCE ABUSE
AND TREATMENT FACILITY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Neil V. Wake, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Alwin Smith, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants
were indifferent to his serious medical needs by denying him adequate care
*
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).
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following cervical disc surgery. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review de novo summary judgment, Toguchi v. Chung, 391 F.3d
1051, 1056 (9th Cir. 2004), and for abuse of discretion the district court’s
discovery rulings, Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir.
2004), and we affirm.
The district court properly granted summary judgment on Smith’s Eighth
Amendment claim. Defendants presented uncontroverted evidence that defendant
Nguyen examined Smith in connection with his complaints following spinal
surgery, Nguyen ordered a further neurological examination and that examination
revealed no condition requiring medical attention. Accordingly Smith failed to
raise a triable issue as to whether the treatment of his symptoms following cervical
disc surgery constituted deliberate indifference. See Hallett v. Morgan, 296 F.3d
732, 744 (9th Cir. 2002) (explaining that prison officials manifest a deliberate
indifference to a prisoner’s medical needs when they intentionally deny, delay or
interfere with medical treatment); Toguchi, 391 F.3d at 1059-60 (concluding that a
difference of opinion concerning the appropriate course of treatment generally does
not amount to deliberate indifference).
The district court did not abuse its discretion by denying Smith’s motion for
additional discovery because Smith did not show that additional discovery would
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uncover specific facts which would preclude summary judgment. See Margolis v.
Ryan, 140 F.3d 850, 854 (9th Cir. 1998) (upholding denial of discovery motion
where “appellants failed to identify facts, either discovered or likely to be
discovered, that would support their § 1983 claim”).
AFFIRMED.
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