NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KORY T. O’BRIEN, No. 22-15258

Plaintiff-Appellant, D.C. No. 1:18-cv-00741-JLT-SAB v.

K. E. SAID; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding

Submitted January 22, 2024**

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

California state prisoner Kory T. O’Brien appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We affirm.

The district court properly granted summary judgment because O’Brien

* 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). failed to raise a genuine dispute of material fact as to whether Dr. Said was

deliberately indifferent to O’Brien’s medical record indicating an elevated

cholesterol level, or deliberately indifferent by failing to provide treatment for that

condition, which could have contributed to O’Brien’s heart attack. A doctor’s

failure immediately to prescribe a statin after one elevated cholesterol reading in a

patient like O’Brien was not shown to constitute deliberate indifference to a

serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.

2004) (prison officials act with deliberate indifference only if they know of and

disregard a risk to the prisoner’s health; medical malpractice, negligence or

difference of opinion concerning the course of treatment does not amount to

deliberate indifference).

We deny O’Brien’s request for judicial notice of the contents of several

medical articles. See Von Saher v. Norton Simon Museum of Art, 592 F.3d 954,

960 (9th Cir. 2010) (explaining that courts may not take judicial notice of

publications for the purpose of showing that the contents of the publications were

in fact true).

We deny O’Brien’s motion for default judgment.

AFFIRMED.

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