David Shelton v. Michael Minev ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID L. SHELTON, No. 22-15470
Plaintiff-Appellant, D.C. No.
3:19-cv-00420-MMD-CSD
v.
MICHAEL MINEV; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted June 16, 2023**
San Francisco, California
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
David Shelton appeals pro se from the district court’s dismissal of one of his
claims and its summary judgment in favor of Defendants-Appellees on two of his
other claims in this action alleging deliberate indifference to and retaliation in
treating Shelton’s medical conditions. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291, and we affirm.
Shelton challenges the district court’s summary judgment on his first claim
for deliberate indifference under the Eighth Amendment for failure to timely treat
his tooth decay. We review a district court’s summary judgment de novo, Nunez v.
Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010), and identify no error. Delay in
dental treatment alone does not amount to deliberate indifference. Hunt v. Dental
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989), citing Shapley v. Nev. Bd. of State Prison
Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). There is no evidence in the record
that prison officials “purposefully ignore[d] or fail[ed] to respond to” Shelton’s
tooth pain. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), rev’d on
other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Indeed,
when Shelton filed his June 25, 2018, grievance regarding his tooth pain, he was
treated within a week and frequently thereafter. Shelton has not offered evidence
that the timing of his treatment resulted in any additional injury or harm.
Shelton also challenges the district court’s summary judgment on his second
claim for retaliation under the First Amendment against Dr. Yup for filing
grievances about allegedly poor dental care. Reviewing de novo, we identify no
error. Shelton fails to identify any evidence that Dr. Yup’s reason for postponing
his November 2018 appointment—that she had no power to the dental chair or
instruments—was pretext for punishing him for filing grievances. See Nelson v.
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Pima Community College, 83 F.3d 1075, 1081–82 (9th Cir. 1996) (“[M]ere
allegation and speculation do not create a factual dispute for purposes of summary
judgment.”). Shelton did not raise his alternate theory—that Dr. Yup’s comments
about his grievances themselves amounted to retaliation—in the district court, so
we will not consider it now. See In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165
(9th Cir. 2000).
Shelton last claims error in the district court’s dismissal of his Eighth
Amendment deliberate indifference claim for failure to warn him of the side effects
of Elavil, a medication prescribed to him. We review a district court’s dismissal
under the Prison Litigation Reform Act’s screening process de novo, Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), and identify no error. As the district
court told Shelton prior to his opportunity to amend, none of the named defendants
were involved in originally prescribing Elavil to him. See Benson v. Terhune, 304
F.3d 874, 885 (9th Cir. 2002) (no affirmative duty for non-prescribing prison staff
to provide information about medication to patient who took treatment without
asking for further information). Shelton did not allege that any named defendant
forced him to take Elavil, and in fact concedes that his request to be taken off
Elavil was followed.
AFFIRMED.
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