NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ERNEST ROJO, AKA James Rojo, No. 15-16703
AKA James E. Rojo,
D.C. No. 3:12-cv-02518-VC
Plaintiff-Appellant,
v. MEMORANDUM*
DARREN BRIGHT, Chief Medical Officer;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Vince G. Chhabria, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
James Ernest Rojo, a California state prisoner, appeals pro se from the district
court’s judgment in his action under 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)
(failure to state a claim under Fed. R. Civ. P. 12(b)(6)); Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We may affirm on any
basis supported by the record. Hell’s Angels Motorcycle Corp. v. McKinley, 360
F.3d 930, 933 (9th Cir. 2004). We affirm.
Summary judgment on Rojo’s deliberate indifference claim was proper because
Rojo failed to raise a genuine dispute of material fact as to whether defendant
Bright was deliberately indifferent in treating Rojo’s mobility problems. See
Toguchi, 391 F.3d at 1057-60 (a prison official acts with deliberate indifference
only if he or she knows of and disregards an excessive risk to the prisoner’s health;
negligence, medical malpractice, or a difference in opinion are insufficient to
establish deliberate indifference).
The district court properly dismissed Rojo’s ADA claim because Rojo failed to
allege facts sufficient to show that defendants failed to act on Rojo’s need for an
accommodation. See Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (a
“deliberate indifference” standard applies to actions seeking compensatory
damages under Title II of the ADA, requiring “both knowledge that a harm to a
2 15-16703
federally protected right is substantially likely, and a failure to act upon that
likelihood”).
AFFIRMED.
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