Jose Aguilar v. Michael Koehn ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE AGUILAR, No. 19-16118
Plaintiff-Appellant, D.C. No. 3:16-cv-00529-MMD-
CBC
v.
MICHAEL B. KOEHN; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Nevada state prisoner Jose Aguilar appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference
to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s ruling on cross-motions for summary judgment.
*
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).
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). We affirm.
The district court properly granted summary judgment for defendant Koehn
regarding the treatment of Aguilar’s back pain and prescription of high blood
pressure medication, and defendant Kerner regarding the provision of medical
assistance to Aguilar during his seizure episode, because Aguilar failed to raise a
genuine dispute of material fact as to whether these defendants were deliberately
indifferent. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a
prison official is deliberately indifferent only if he or she knows of and disregards
an excessive risk to the prisoner’s health; medical malpractice, negligence, or a
difference of opinion concerning the course of treatment does not amount to
deliberate indifference).
The district court properly granted summary judgment for defendant Baker
because Aguilar failed to exhaust his administrative remedies and failed to raise a
genuine dispute of material fact as to whether administrative remedies were
effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850, 1856, 1858-60
(2016) (explaining that an inmate must exhaust such administrative remedies as are
available before bringing suit, and describing limited circumstances in which
administrative remedies are unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(“[P]roper exhaustion of administrative remedies . . . means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on
2 19-16118
the merits).” (citation, internal quotation marks, and emphasis omitted)).
Aguilar’s request, set forth in the opening brief, to unseal his medical
records to allow this court to review his medical records is denied as unnecessary.
See Fed. R. App. P. 10(a) (record on appeal includes original papers and exhibits
filed in the district court).
AFFIRMED.
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