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 2022-05

James Herrington v. Thomas Bristol ( 2022 )


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  •                                                                             FILED
NOT FOR PUBLICATION
MAY 5 2022
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LEROY HERRINGTON,                          No.    20-35288
Plaintiff-Appellant,               D.C. No. 2:16-cv-00680-AC
v.
MEMORANDUM*
THOMAS BRISTOL, Dr.; et al.,
Defendants-Appellees,
and
THERAPUTIC LEVEL OF CARE
COMMITTEE; et al.,
Defendants.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 4, 2022 **
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges
*
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).
James Herrington appeals the district court’s grant of summary judgment in
favor of the defendants in his
    42 U.S.C. § 1983
     civil rights action. We have
jurisdiction pursuant to
    28 U.S.C. § 1291
    . We review the grant of summary
judgment de novo, Toguchi v. Chung,
    391 F.3d 1051
    , 1056 (9th Cir. 2004), and
affirm.
The continuing violations doctrine does not save the claims challenging
treatment that occurred before the statue of limitations ran on February 19, 2014.
The mere fact that the testing and treatment decisions were related to the same
medical condition does not establish a continuing violation. See Pouncil v. Tilton,
    704 F.3d 568
    , 579 (9th Cir. 2012) (explaining that “the statute of limitations begins
to run, from the date of [each] discrete act, even if there was a prior, related past
act”); Bird v. Dep’t of Hum. Servs.,
    935 F.3d 738
    , 748 (9th Cir. 2019) (explaining
that a “continuing impact” from acts occurring before the limitations period will
not establish a continuing violation).
The district court did not abuse its discretion by finding that a doctor’s
affidavit was not submitted in bad faith and denying the motion to strike the
affidavit. See Winterrowd v. Am. Gen. Annuity Ins. Co.,
    556 F.3d 815
    , 819 (9th
Cir. 2009) (setting forth the standard of review).
2
Herrington’s mere disagreement with the doctors’ testing, diagnoses, and
treatment decisions does establish deliberate indifference. Estelle v. Gamble,
    429 U.S. 97
    , 106-07 (1976); Toguchi,
    391 F.3d at 1058
    ; Sanchez v. Vild,
    891 F.2d 240
    ,
242 (9th Cir. 1989). There is no evidence that the defendants knew of and
disregarded an excessive risk to Herrington’s health. The prison offered to
facilitate his purchase of orthotics, which he declined. He did not allege or
establish in the district court that he was unable to pay for the orthotics. See
Porretti v. Dzurenda,
    11 F.4th 1037
    , 1047-48 (9th Cir. 2021) (setting forth the
deliberate indifference standard); Shapley v. Nev. Bd. of State Prison Com’rs,
    766 F.2d 404
    , 408 (9th Cir. 1985) (holding that a policy of requiring inmates to self-
purchase medical care does not violate the Eighth Amendment absent evidence of
deliberate indifference under Estelle).
AFFIRMED.
3