NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH A. GRIFFIN, No. 20-15841
Plaintiff-Appellant, D.C. No.
2:10-cv-02525-MCE-AC
v.
J. BAL; et al., MEMORANDUM*
Defendants-Appellees,
and
J. CLARK KELSO; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted March 10, 2021**
San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.
Kenneth Griffin appeals the district court’s grant of Appellees’ motion for
*
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).
summary judgment on his 42 U.S.C. § 1983 action alleging deliberate indifference
to his serious medical needs and denial of his motion for leave to amend the
complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo a grant of summary judgment. Sandoval v. County of
Sonoma, 912 F.3d 509, 515 (9th Cir. 2018). “We determine, viewing the evidence
in the light most favorable to the nonmoving party, whether there are any genuine
issues of material fact and whether the district court correctly applied the relevant
substantive law.” Wallis v. Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir.
2002) (citing Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001)). We review for abuse of discretion the district court’s denial of leave
to amend. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir.
2012).
The district court properly granted summary judgment to Appellees on
Griffin’s deliberate indifference claim because he “failed to establish the existence
of an element essential to [his] case on which [he] will bear the burden of proof at
trial.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1222 (9th Cir. 1995);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Griffin did not
present any evidence that any Appellee “kn[ew] of and disregard[ed] an excessive
risk to [his] health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (“A prison official acts with ‘deliberate indifference . . . only if the [prison
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official] knows of and disregards an excessive risk to inmate health and safety.’”
(citation omitted and alterations in original)). At most, the evidence, viewed in the
light most favorable to Griffin, could establish that Appellees’ failure to refer him
to an orthopedist sooner was negligent. But “[m]ere negligence in diagnosing or
treating a medical condition, without more, does not violate a prisoner’s Eighth
Amendment rights.” Id. at 1057 (citation omitted). Because no genuine issue of
fact was raised regarding Appellees’ “subjective knowledge and conscious
disregard of a substantial risk of serious injury” to Griffin, the district court
properly entered summary judgment in their favor. Id. at 1061.
The district court did not abuse its discretion in concluding that amendment
would either be futile or prejudicial to Appellees and denying Griffin’s motion for
leave to amend his complaint on these grounds. See Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003).
AFFIRMED.
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