NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STANTON HARRY MCCAIN II, No. 21-35809

Plaintiff-Appellant, D.C. No. 4:18-cv-05174-TOR

v.

MEMORANDUM *

DEPARTMENT OF CORRECTIONS;

FRANK JOHN SMITH, M.D.; STEPHEN

SINCLAIR, Secretary of DOC; JONI AIYEKU, WSP Grievance Coordinator;

DONALD HOLBROOK, WSP

Superintendent; STEVEN HAMMOND, M.D., MD/DOC Medical Director; LISA KLEMME, DOC/ADA Coordinator; KAREN FORSS, WSP Health Service Management/ADA Coordinator,

Defendants-Appellees,

and

MICHAEL M. SILVA, TRU A-Unit Sergeant; JOHN DOES, 1-3; Officer; WSP/IMU Sgts; JOHN DOES, 4-14; WSP/IMU Floor officers,

Defendants.

Appeal from the United States District Court for the Eastern District of Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Thomas O. Rice, District Judge, Presiding

Submitted December 18, 2023**

Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, Circuit Judges.

Washington state prisoner Stanton Harry McCain, II, appeals pro se the

district court’s summary judgment in his action under 42 U.S.C. § 1983, the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the

Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 701, et seq. McCain alleges that

defendants violated his Eighth Amendment rights, the ADA, and the RA when

they denied him a wheelchair during the 85 days when he was confined in the

Intensive Management Unit (“IMU”) at the Washington State Penitentiary. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Johnson v. Barr, 79

F.4th 996, 1003 (9th Cir. 2023). We affirm.

The district court properly granted summary judgment on McCain’s Eighth

Amendment claim because he failed to raise a triable dispute as to whether

defendants acted with deliberate indifference to any serious medical need. See

Edmo v. Corizon, Inc., 935 F.3d 757, 785-86 (9th Cir. 2019) (explaining

requirements of a medical deliberate indifference claim, including showing that

“the course of treatment the official chose was medically unacceptable under the

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

2 circumstances and [chosen] in conscious disregard of an excessive risk to the

plaintiff’s health” (citation, internal quotation marks, and alteration omitted)). The

record contains medical opinions and other evidence that a wheelchair was not

medically necessary when McCain was confined in the IMU. See id. at 786

(“Typically, a difference of opinion between a physician and the prisoner—or

between medical professionals—concerning what medical care is appropriate does

not amount to deliberate indifference.’” (citation, internal quotation marks, and

alteration omitted)). The record also demonstrates that defendants provided

McCain medical care for his health conditions but that he refused treatment on

multiple occasions, including refusing to attend a medical appointment to discuss

his wheelchair concerns in the IMU. See Cano v. Taylor, 739 F.3d 1214, 1217-18

(9th Cir. 2014) (affirming summary judgment on a claim for inadequate medical

care where the record showed numerous instances of the plaintiff receiving

medical care for his complaints and many instances of his refusal to cooperate with

medical care).

The district court properly granted summary judgment on McCain’s ADA

and RA claims because he failed to raise a triable dispute as to whether defendants

discriminated against him or denied him services because of a disability. See

Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (explaining

requirements of prisoners’ ADA and RA claims).

3 The district court properly found that the individual defendants were entitled

to qualified immunity on the claims for damages because McCain failed to show

any violation of his statutory or constitutional rights. See Sampson v. Cnty. of Los

Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020) (“qualified immunity protects

government officials from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known” (citation and internal quotations omitted)).

The district court did not abuse its discretion in denying McCain’s request

for an extension of time to conduct discovery because McCain did not show that he

“diligently pursued discovery opportunities” or that “allowing additional discovery

would have precluded summary judgment.” Cornwell v. Electra Cent. Credit

Union, 439 F.3d 1018, 1026 (9th Cir. 2006) (setting forth standard of review and

explaining requirements to show an abuse of discretion in this context) (citation

and internal quotation marks omitted).

McCain’s motion for an extension of time to file the reply brief, Docket

Entry No. 32, is denied as unnecessary. The reply brief was timely filed.

AFFIRMED.

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