Daniel Wright v. Dorothy Swingle , 482 F. App'x 294 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL WEBSTER WRIGHT, No. 11-17275
Plaintiff - Appellant, D.C. No. 2:09-cv-02349-MCE-
JFM
v.
DOROTHY E. SWINGLE; J. MEMORANDUM *
NEPOMUCENO,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
David Webster Wright, 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 serious medical needs in connection with the frequency
*
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).
and manner in which he received pain medication. We have jurisdiction under 28
U.S.C. § 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 on Wright’s
medication delay claim because Wright failed to raise a genuine dispute of material
fact as to whether defendants were involved in or had any control over ordering
and stocking prescription medication and thus were responsible for its delay. See
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (no respondeat superior
liability under § 1983; plaintiff must show personal involvement in alleged
violations); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“A person deprives
another of a constitutional right, within the meaning of section 1983, if he does an
affirmative act, participates in another’s affirmative acts, or omits to perform an act
which he is legally required to do that causes the deprivation of which the plaintiff
complains.” (citation, internal quotation marks, and alterations omitted)).
The district court properly granted summary judgment on the “crush and
float” policy claim because Wright failed to raise a genuine dispute of material fact
as to whether the policy of crushing his medication into a powder and placing it in
water was chosen in conscious disregard of an excessive risk to Wright’s health.
See Toguchi, 391 F.3d at 1058 (prison officials act with deliberate indifference
2 11-17275
only if they know of and disregard an excessive risk to inmate health); Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (where defendant has based actions on
a medical judgment that either of two alternative courses of treatment would be
medically acceptable under the circumstances, plaintiff must show that the chosen
course of treatment was medically unacceptable and in conscious disregard of an
excessive risk to plaintiff’s health).
AFFIRMED.
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