NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK PATRICK BIRCH, Jr., No. 18-15669

Petitioner-Appellant, D.C. No. 2:16-cv-01051-RFB-

CWH

v.

JOSEPH LOMBARDO, et al., MEMORANDUM*

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Submitted December 18, 2019**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

Frank Patrick Birch, Jr., appeals from the district court’s grant of summary

judgment in his 42 U.S.C. § 1983 action alleging a violation of his Fourteenth

Amendment due process rights. The court dismissed one defendant and granted

* 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). summary judgment in favor of two others. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

Birch claims he suffered severe weight loss and endured untreated heart and

shoulder problems while incarcerated at Nevada’s Clark County Detention Center

(CCDC). He sued Clark County Sheriff Joseph Lombardo, CCDC health-care

provider NaphCare, and Dr. Larry Williamson, the supervising physician. The

district court granted Lombardo’s motion to dismiss Birch’s claim against him for

failure to state a claim and granted in part NaphCare and Williamson’s motion for

the same reason. And finding no genuine dispute as to material fact, it thereafter

granted summary judgment in favor of NaphCare and Williamson on Birch’s

remaining claims and entered final judgment in favor of the defendants. Birch

timely appealed.

A district court’s dismissal of a § 1983 claim is reviewed de novo, see Patel

v. City of Montclair, 798 F.3d 895, 897 (9th Cir. 2015), as is a grant of summary

judgment in a § 1983 action, see Tibbetts v. Kulongoski, 567 F.3d 529, 535 (9th

Cir. 2009). Evidentiary rulings are reviewed for abuse of discretion. See United

States v. McFall, 558 F.3d 951, 960 (9th Cir. 2009).

Birch alleges in his complaint—taken as true and construed in the light most

favorable to him for the purpose of evaluation under Federal Rule of Civil

Procedure 12(b)(6), see Capp v. County of San Diego, 940 F.3d 1046, 1052 (9th

2 Cir. 2019)—that he was 220 pounds upon entering CCDC, and under 150 pounds

when he filed his complaint in May of 2016. To recover against Lombardo, Birch

needed to allege that Lombardo’s failure to order additional food for Birch put

Birch “at substantial risk of suffering serious harm” and that a reasonable official

in Lombardo’s shoes “would have appreciated the high degree of risk involved.”

Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (establishing the

test for deliberate indifference under the Fourteenth Amendment). Birch cannot

show that the harm he alleged—i.e., weight loss that kept him at an objectively

reasonable weight according to the Body Mass Index (BMI)—put him at such a

substantial risk or that a reasonable prison official would have appreciated that

risk. Accordingly, the district court’s dismissal of Birch’s claim against Lombardo

was proper.

Birch’s weight-loss claim against NaphCare and Williamson was likewise

correctly dismissed. Birch did not point to any way in which his overall wellbeing

suffered as a result of his weight loss. He simply complained that he lost over 70

pounds. That allegation alone—without supporting evidence of resulting

detrimental effects on his health—does not amount to a claim of “serious harm”

under our deliberate-indifference jurisprudence. See Gordon, 888 F.3d at 1125.

Cf. Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc)

(plaintiff who was hospitalized, kept in long-term-care facility for four years, and

3 who suffered from severe memory loss made out a claim of “serious harm”).

The district court allowed Birch’s claims relating to his shoulder and heart to

proceed to summary judgment. Finding no genuine dispute as to any material fact,

it granted NaphCare’s and Williamson’s motion for summary judgment. The

district court correctly found that, far from neglecting Birch’s ailments, NaphCare

and Williamson continually treated Birch’s shoulder and heart using methods an

expert deemed to be aligned with national best practices. That NaphCare’s chosen

treatments did not satisfy Birch is not probative; no reasonable fact-finder could

conclude that NaphCare’s and Williamson’s policy constituted deliberate

indifference. Summary judgment was therefore appropriate.

The district court did not err in declining to allow Birch to amend his

complaint because the court correctly determined amendment would be futile. See

Barahona v. Union Pacific R.R. Co., 881 F.3d 1122 (9th Cir. 2018).

Finally, Birch challenges a raft of district court evidentiary and case-

management decisions. We have examined these claims and find each lacking in

merit. The district court deftly and correctly handled each issue presented to it.

All pending motions are denied as moot.

AFFIRMED.

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