NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL WINDHAM, Jr., No. 22-15387

Plaintiff-Appellant, D.C. No. 2:18-cv-02656-WBS-DMC v.

C. WOFFORD, Associate Warden; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted January 25, 2023** San Francisco, California

Before: WALLACE, SILVERMAN, and OWENS, Circuit Judges.

* 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). Samuel Windham, Jr., appeals pro se from the district court’s summary

judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

Cir. 2004). We affirm.

Windham, an inmate at California Medical Facility in Vacaville, California,

brought a civil rights action pursuant to 42 U.S.C. § 1983, claiming that California

Department of Corrections and Rehabilitation employee defendants—associate

prison wardens Medina and Wofford, doctors Pai and Osman, and nurses Champion

and Inniss-Burton—were deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment. Windham, who requires medical care to treat

burns on over 75% of his body, alleges that Medina was deliberately indifferent in

how he handled a leak in Windham’s cell; that Wofford was deliberately indifferent

when he denied Windham hydrotherapy and a follow-up visit with a plastic surgeon;

that Pai and Osman were deliberately indifferent because they delayed and denied

follow-up treatment; and that Champion and Inniss-Burton were deliberately

indifferent because they used a type of bandage that Windham claims damaged his

wound and because they falsified his medical progress notes.

While we construe a pro se litigant’s filings liberally, Windham does not

provide specific and distinct arguments in his briefing to demonstrate that there are

genuine issues of material fact for trial. Brazil v. U.S. Dep’t of Navy, 66 F.3d 193,

2 199 (9th Cir. 1995); Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).

Windham failed to demonstrate a genuine dispute that defendants were deliberately

indifferent to his serious medical needs.

To prevail on a deliberate indifference claim, a plaintiff must establish: (1)

the existence of a serious medical need; and (2) that the defendants’ response to the

need was deliberately indifferent by showing (a) a purposeful act or failure to

respond to a plaintiff’s pain or possible medical need, and (b) harm caused by the

indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006. A mere

“‘difference of medical opinion’ as to the need to pursue one course of treatment

over another [is] insufficient, as a matter of law, to establish deliberate indifference.”

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other

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

Windham must prove that the treatment he received “was medically unacceptable

under the circumstances” and was chosen “in conscious disregard of an excessive

risk” to his health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).

While Windham has demonstrated that failure to treat his condition could

result in further significant injury or pain, he fails to allege genuine facts

demonstrating that defendants were consciously treating him in a medically

unacceptable way. Although he alleges that their treatment was “damaging” and

that they took “illegal” actions, Windham must do more than merely raise

3 conclusory allegations or speculations—he must designate specific facts showing

that there is a genuine issue for trial. Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007). He has not done so.

Specifically, Windham does not present material facts to refute the alleged

fact that Medina responded reasonably quickly to resolve a leak in his cell once

Windham filed a reasonable accommodation request, and does not provide facts

beyond his own pleadings that the way Medina responded created his infection.

Windham also does not demonstrate why Wofford’s denial of hydrotherapy is

deliberately indifferent, as it was never prescribed as necessary to avoid further

significant injury or pain; nor does he explain why the numerous opportunities

Wofford allowed him to see a surgeon for follow-up were “medically unacceptable.”

Windham does not present material facts to demonstrate how doctors Pai and

Osman delayed and provided damaging treatment. Rather, the undisputed facts

indicates the contrary: they appeared to have prescribed reasonable care and

followed the recommendations of plastic surgeon specialists—including those from

Dr. Hansen, Windham’s preferred doctor. While Windham may have preferred

seeing a different doctor at a different facility, a person does not have a constitutional

right to their preferred course of treatment. Jackson, 90 F.3d at 332. The district

court was correct to hold that, at most, the claims against Osman and Pai amount to

4 Windham’s disagreement concerning his treatment, which does not constitute

deliberate indifference. Toguchi, 391 F.3d at 1058.

Windham does not present material facts to support his contention that nurses

Champion and Inniss-Burton were deliberately indifferent because they used a type

of bandage that he claims damaged his wound. The record shows that the nurses

appeared to comply with the recommended treatment procedures. Windham also

offers no specific support for how they have falsified his medical progress notes.

Thus, this claim, without more, cannot defeat summary judgment, as such

conclusory statements without factual support are insufficient. Surrell v. California

Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).

The district court did not err in granting summary judgment for defendants

because Windham did not provide genuine issues of material fact to support his

allegations.

AFFIRMED.

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