Salvador Mendoza v. Paula Crinklaw , 529 F. App'x 865 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SALVADOR MENDOZA, No. 12-15886
Plaintiff - Appellant, D.C. No. 5:10-cv-04415-EJD
v.
MEMORANDUM *
PAULA CRINKLAW,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Salvador Mendoza, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his medical needs. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004), and we affirm.
The district court properly granted summary judgment because Mendoza
failed to raise a genuine dispute of material fact as to whether defendant was
deliberately indifferent in treating Mendoza’s injured finger. See id. at 1058, 1060(prison officials act with deliberate indifference only if they know of and disregard
an excessive risk to inmate health; “[a] showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment”).
The district court did not abuse its discretion in denying Mendoza’s request
to file a supplemental declaration in opposition to summary judgment because the
fact Mendoza sought to establish was assumed true for purposes of the summary
judgment motion. See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 813
(9th Cir. 2002) (“We review for abuse of discretion evidentiary rulings made in the
context of summary judgment.”).
Although Mendoza did not receive notice of the requirements to defeat
summary judgment concurrently with the motion for summary judgment, the error
was harmless in this case. See Woods v. Carey, 684 F.3d 934, 935, 941 (9th Cir.
2012) (Rand notice must be served concurrently with a motion for summary
2 12-15886
judgment; failure to provide adequate Rand notice “is a ground for reversal unless
it is clear from the record that there are no facts that would permit the inmate to
prevail”).
Mendoza’s request for judicial notice, filed on November 15, 2012, is denied
as unnecessary because the document he seeks to have this court judicially notice
is already part of the district court record.
AFFIRMED.
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