GOSNEY v. GOWER ODOC (2020)

MEMORANDUM **

Donald Gosney, proceeding pro se, appeals the district court's order granting summary judgment for Appellees. We have jurisdiction under 28 U.S.C. § 1291 and, on de novo review, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018), we affirm.

The district court did not err in granting summary judgment on Gosney's deliberate indifference claims. Establishing deliberate indifference to a serious medical need requires showing: (1) failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain; and (2) the defendant's response to the need was deliberately indifferent. Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). Here, the record demonstrates that neither Nurse Gruenwald nor the Therapeutic Level of Care Committee (“TLC”) were deliberately indifferent to Gosney's hip problems by not instantly approving him for hip replacement surgery. Rather, with Gosney's hip pain in mind, they prescribed an alternative course of treatment to prevent premature surgery and determine whether his pain could be effectively managed without surgery. When that proved insufficient, Nurse Gruenwald recommended surgery, which the TLC ultimately approved. Under these circumstances, we do not find the choice of treatment “medically unacceptable” and “chose[n] in conscious disregard of an excessive risk to [Gosney's] health” to withstand summary judgment on his deliberate indifference claims. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

Along these lines, Gosney's claims that Appellees violated the Americans with Disabilities Act (“ADA”) by denying his requests for a cane, bathroom modifications, and a mobility assistive device do not survive summary judgment. “The ADA prohibits discrimination because of disability, not inadequate treatment for disability.” Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc). As Appellees found the requested assistive devices not medically necessary to Gosney's treatment, their denial of his request does not amount to an ADA violation.

AFFIRMED.