NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD ALLEN GOSNEY, No. 19-35291
Plaintiff-Appellant, D.C. No. 6:16-cv-01072-SB
v.
MEMORANDUM*
MIKE GOWER, ODOC Assistant Director;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Submitted August 6, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Donald Gosney, proceeding pro se, appeals the district court’s order granting
summary judgment for Appellees. We have jurisdiction under 28 U.S.C. § 1291
*
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).
and, on de novo review, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir.
2018), we affirm.
The district court did not err in granting summary judgment on Gosney’s
deliberate indifference claims. Establishing deliberate indifference to a serious
medical need requires showing: (1) failure to treat a prisoner’s condition could result
in further significant injury or the unnecessary and wanton infliction of pain; and (2)
the defendant’s response to the need was deliberately indifferent. Wilhelm v.
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006)). Here, the record demonstrates that neither Nurse Gruenwald
nor the Therapeutic Level of Care Committee (“TLC”) were deliberately indifferent
to Gosney’s hip problems by not instantly approving him for hip replacement
surgery. Rather, with Gosney’s hip pain in mind, they prescribed an alternative
course of treatment to prevent premature surgery and determine whether his pain
could be effectively managed without surgery. When that proved insufficient, Nurse
Gruenwald recommended surgery, which the TLC ultimately approved. Under these
circumstances, we do not find the choice of treatment “medically unacceptable” and
“chose[n] in conscious disregard of an excessive risk to [Gosney’s] health” to
withstand summary judgment on his deliberate indifference claims. See Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
2
Along these lines, Gosney’s claims that Appellees violated the Americans
with Disabilities Act (“ADA”) by denying his requests for a cane, bathroom
modifications, and a mobility assistive device do not survive summary judgment.
“The ADA prohibits discrimination because of disability, not inadequate treatment
for disability.” Simmons v. Navajo County, Arizona., 609 F.3d 1011, 1022 (9th Cir.
2010), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d
1060 (9th Cir. 2016) (en banc). As Appellees found the requested assistive devices
not medically necessary to Gosney’s treatment, their denial of his request does not
amount to an ADA violation.
AFFIRMED.
3