Brodrick Collins v. Ross Quinn ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 2 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRODRICK T. COLLINS, No. 15-56788
Plaintiff-Appellant, D.C. No. 5:13-cv-00308-CJC-
MRW
v.
ROSS QUINN, Medical Director, individual MEMORANDUM*
and official capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted on December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Federal prisoner Brodrick T. Collins appeals pro se from the district court’s
summary judgment in his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort
Claims Act (“FTCA”), alleging deliberate indifference and medical malpractice.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Collins’s
deliberate indifference claim against defendants Quinn and Esquetini because
Collins failed to raise a genuine dispute of material fact as to whether these
defendants delayed or denied Collins appropriate medical care. See id. at 1057-60(a prison official is deliberately indifferent only if he or she knows of and
disregards an excessive risk to inmate health; neither a difference of opinion
concerning the course of treatment nor mere negligence in diagnosing or treating a
medical condition amounts to deliberate indifference).
The district court properly granted summary judgment on Collins’s FTCA
claim because Collins failed to raise a genuine dispute of material fact as to
whether Collins’s injuries were proximately caused by defendants’ alleged
malpractice. See Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (in an
FTCA action, the law of the state in which the alleged tort occurred applies);
Johnson v. Superior Court, 49 Cal. Rptr. 3d 52, 58 (Ct. App. 2006) (elements of
medical malpractice claim under California law); see also Miranda v. Bomel
Constr. Co., 115 Cal. Rptr. 3d 538, 545-46 (Ct. App. 2010) (in a personal injury
action, causation must be proven within a reasonable medical probability based
upon competent expert testimony).
2 15-56788
We reject as without merit Collins’s contention that defendants committed
fraud on the court.
We do not consider claims dismissed with leave to amend that Collins failed
to re-allege in an amended complaint. See Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 973 n.14 (9th Cir. 2013) (failure to replead claims
after dismissal with leave to amend amounts to waiver).
AFFIRMED.
3 15-56788