FILED
NOT FOR PUBLICATION
MAY 4 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HUGH COLE, No. 19-15671
Plaintiff-Appellant, D.C. No. 5:17-cv-05691-BLF
v.
MEMORANDUM*
NANCY ADAM, M.D.; SUSAN
WADDELL, Nurse; LAURIE THOMAS,
Physician’s Assistant; CATHERINE
TIMOSHENKO, R.N.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted May 3, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
California State prisoner Robert Hugh Cole appeals the district court’s
summary judgment in favor of Dr. Nancy Adam and Nurse Susan Waddell,
*
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).
medical personnel at Pelican Bay State Prison, in Cole’s action alleging deliberate
indifference to his serious medical needs and related tort claims under California
law. See U.S. Const. amend. VIII; 42 U.S.C. § 1983. We affirm.
The district court did not abuse its discretion in denying Cole’s request to
appoint counsel to represent him. See Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009); see also 28 U.S.C. § 1915(e)(1). No exceptional circumstances
warranting appointment of counsel existed. See Palmer, 560 F.3d at 970; Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
The district court did not abuse its discretion in denying Cole’s motion to
compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Cole
failed to show that he was entitled to the privileged documents he sought,1 and that
he was actually and substantially prejudiced by the denial of discovery.2
Reviewing de novo, we conclude that the district court did not err in
granting summary judgment to Adam and Waddell on Cole’s deliberate
indifference claims. See Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir.
2016); see also Fed. R. Civ. P. 56(a). That Cole disagreed with the treatment given
for his pain, withdrawal symptoms, and plantar fibromas “‘does not amount to
1
See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990).
2
See Hallett, 296 F.3d at 751.
2
deliberate indifference’” on the part of Adam and Waddell. Hamby, 821 F.3d at
1092. There was no genuine dispute of material fact that Adam and Waddell
rendered Cole medically acceptable treatment, and that they were not aware of any
substantial risk of serious harm to Cole arising therefrom. See id.; Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
The district court did not abuse its discretion in denying Cole leave to amend
his complaint to name two other defendants. See Acri v. Int’l Ass’n of Machinists,
781 F.2d 1393, 1398 (9th Cir. 1986). The summary judgment record made it
absolutely clear that the proposed amendments were futile. Akhtar v. Mesa, 698
F.3d 1202, 1212 (9th Cir. 2012); Sweaney v. Ada County, 119 F.3d 1385, 1392–93
(9th Cir. 1997). Cole’s allegations—that a few of his methadone doses were
missed or delayed, and that he received a new prescription for his existing dosage
while waiting to be seen by Dr. Adam—do not suffice to spell out a deliberate
indifference claim. See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990);
Wood v. Housewright, 900 F.2d 1332, 1333–35 (9th Cir. 1990).
AFFIRMED.
3