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65 F3d 176 Spence v. Swaney

65 F.3d 176

Gerald SPENCE, Plaintiff-Appellant,
v.
SWANEY, Sergeant, Defendant-Appellee.

No. 95-15576.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 16, 1995.*
Decided Aug. 22, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: ALARCON, FERNANDEZ and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Arizona state prisoner Gerald Spence appeals pro se the district court's summary judgment dismissal of his 42 U.S.C. Sec. 1983 action alleging that Sergeant Swaney of the Maricopa county jail subjected Spence to cruel and unusual punishment and demonstrated deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

3

The district court properly granted summary judgment for Swaney because Spence failed to provide evidence that Swaney acted culpably and with deliberate indifference in allowing an unhygenic prison condition to occur, Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); and a delay in medical care, without more, is insufficient to establish deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). The district judge also did not abuse his discretion by not sua sponte recusing himself because Spence presented no evidence of extrajudicial bias or prejudice. See 28 U.S.C. Secs. 144 and 455; Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1387-88 (9th Cir.1988).

4

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3