NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUDY WILKINS, No. 18-17044

Plaintiff-Appellant, D.C. No. 4:15-cv-01706-YGR

v.

MEMORANDUM*

ALAMEDA COUNTY SHERIFF'S

OFFICE; GREGORY J. AHERN,

Defendants,

RICHARD T. LUCIA,

Defendant,

R. MACINTIRE, Sergeant,

Defendant,

D. DIXON, Sergeant,

Defendant,

UJOUR, Deputy #1985; CORIZON

MEDICAL,

Defendants,

and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

F. CHEN, Doctor,

Defendant-Appellee,

MARIA MAGAT, Doctor,

Defendant-Appellee,

G. NEWELL, Doctor,

Defendant-Appellee,

KHIN THA, Doctor,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 20, 2020**

Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.

Rudy Wilkins appeals from the entry of summary judgment on his claims,

under 42 U.S.C. § 1983, that four doctors who treated him during his two-year

incarceration at the Santa Rita Jail violated his Eighth and Fourteenth Amendment

rights. Wilkins also challenges the district court’s denial of several motions for the

appointment of counsel and the denial of several motions to compel additional

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 discovery. The facts are known to the parties, and we do not repeat them here.

I

To survive summary judgment, Wilkins needed to provide a sufficient

showing to establish that the defendants were deliberately indifferent to his serious

medical needs. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Estelle v.

Gamble, 429 U.S. 97, 104 (1976). The district court correctly concluded that

Wilkins failed to carry his burden to raise a genuine issue of fact to support his claim

that defendants were deliberately indifferent.

A mere “difference of opinion” between a prisoner and his medical provider

as to the proper course of treatment is not grounds for deliberate indifference. Snow

v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in part not relevant here

by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). Rather, the

prisoner-plaintiff “must show that the course of treatment the doctors chose was

medically unacceptable under the circumstances and that defendants chose this

course in conscious disregard of an excessive risk to the plaintiff’s health.” Id. at

988 (internal quotation marks and citation omitted). That a specific treatment was

delayed or denied, without more, does not create a triable issue as to deliberate

indifference, which is a culpable state of mind. See Farmer v. Brennan, 511 U.S.

825, 834 (1994). Nor does the obviousness of a plaintiff’s medical needs create a

triable issue when the risks of the chosen treatment were not obviously excessive.

3 Id. at 842.

Wilkins’s allegation that Dr. Chen refused to prescribe calamine lotion does

not raise a triable issue of deliberate indifference. Wilkins fails to provide evidence

suggesting that the prescription of antihistamines and hydrocortisone instead of

calamine lotion was “medically unacceptable under the circumstances.” See Snow,

681 F.3d at 988.

Nor does the denial of certain special accommodations—closed-toe shoes, an

extra blanket, and a jacket—raise a triable issue. Wilkins fails to identify evidence

suggesting that the denial of an extra blanket or a jacket was medically unacceptable.

His blood test did not reveal a cold sensitivity. Likewise, he fails to produce

evidence that closed-toed shoes were denied in conscious disregard of any excessive

risk.

Wilkins further fails to provide evidence suggesting that Dr. Newell’s “drug

holiday” to avert the renal and gastrointestinal risks of prolonged use of Tylenol and

nonsteroidal anti-inflammatory drugs was medically unacceptable, particularly

given the corresponding prescription of low-risk analgesic balm.

Similarly, Wilkins identifies no evidence suggesting that Dr. Newell’s and Dr.

Tha’s plans to treat his hernia conservatively (with clinical monitoring and a hernia

belt) rather than aggressively (with surgery) was medically unacceptable under the

circumstances.

4 Wilkins did not provide any evidence that he complained to any of the

defendants about musculoskeletal shoulder or clavicle issues, complaining only of

arthritic pain. He therefore fails to raise a triable issue as to whether the lack of a

referral for an x-ray or surgery manifests the conscious disregard of an excessive

risk to his health.

Finally, without an underlying constitutional violation by one of the

defendants, Dr. Magat cannot be held liable as a supervisor. See Snow, 681 F.3d at

989.

II

The district court appropriately exercised its discretion by denying Wilkins’s

motions to appoint counsel. Given his low likelihood of success on the merits and

the relative straightforwardness of the legal issues, Wilkins failed to demonstrate the

requisite “exceptional circumstances.” Wilborn v. Escalderon, 789 F.2d 1328, 1331

(9th Cir. 1986).

III

The district court appropriately exercised its discretion by denying Wilkins’s

motions to compel additional discovery. See Laub v. U.S. Dep’t of Interior, 342

F.3d 1080, 1093 (9th Cir. 2003). The court cannot require the production of non-

existent training materials and Wilkins provided no explanation to support his

assertion that such additional training materials exist.

5

AFFIRMED.

6