Clifton Hutchins, Jr. v. Bill Lockyer ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON HUTCHINS, Jr., No. 22-15036
Plaintiff-Appellant, D.C. No.
1:15-cv-01537-DAD-HBK
v.
BILL LOCKYER; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted March 28, 2023**
San Francisco, California
Before: WALLACE, SILVERMAN, and N.R. SMITH, Circuit Judges.
Clifton Hutchins appeals pro se from the district court’s summary judgment
in favor of Defendant-Appellee Dr. A. Johal on Hutchins’s Eighth Amendment
claim for medical deliberate indifference. We review a summary judgment de
novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in granting summary judgment to Dr. Johal on
Hutchins’s Eighth Amendment deliberate indifference claim. Dr. Johal was not
deliberately indifferent to Hutchins’s serious medical needs when Dr. Johal
prescribed non-opioid painkillers to treat Hutchins’s chronic pain. Dr. Johal
submitted undisputed expert testimony that non-opioid pain medication is preferred
for long-term pain treatment over opioid pain medication because of the addictive
nature of opioid medications. Hutchins’s disagreement with Dr. Johal about the
type of medication he should receive does not mean that Dr. Johal was deliberately
indifferent. Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled on
other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
Hutchins failed to submit any rebuttal expert medical testimony, and his other
counterarguments are based on mischaracterization of the record or bare assertions
that cannot defeat summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007);
Soremekum v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
Because we hold that Dr. Johal was not deliberately indifferent to Hutchins’s
serious medical need, we need not consider if Dr. Johal was entitled to qualified
immunity.
2
AFFIRMED.1
1
Hutchins does not challenge the dismissal of his other claims against Dr. Johal,
nor the dismissal of his claims against the other defendants. Thus, he has waived
any challenge to the district court’s dismissal of those claims. See Indep. Towers
of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not
consider any claims that were not actually argued in appellant’s opening brief.”).
3