846 F.2d 1383
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Cloviel SMITH, Jr., Plaintiff-Appellant,
John MORAN, Sheriff; Gordon Yach; George Sumner, Director,
Nevada Department of Prisons; Walter Luster, Warden,
Southern Nevada Correctional Center; Leon Hardison,
Assistant Warden, Southern Nevada Correctional Center;
Charles Alvarez; Keith Hogue; Ronald Davis; Robert
Fairbanks; William Bannen, M.D.; and Harold Fiekes, M.D.,
United States Court of Appeals, Ninth Circuit.
Submitted April 13, 1988.*
Decided May 13, 1988.
Before BARNES, KILKENNY and GOODWIN, Circuit Judges.
This appeal arises out of two separate civil rights actions filed under 42 U.S.C. Sec. 1983 by Cloviel Smith, Jr. ("Smith"), an inmate at the Southern Nevada Correctional Center ("SNCC"), against various state and local prison officials, a county sheriff, and two physicians following the district court's dismissal of the two original complaints as against certain parties, the amended1 actions were consolidated and the district court subsequently entered summary judgment in favor of the appellees. Smith has timely appealed, and we affirm.
The gravamen of Smith's claims may be characterized as fourteenth amendment violations stemming from his medical treatment while a detainee at the Clark County [Nevada] Detention Center, and eighth amendment violations stemming from his medical treatment while a prisoner at the SNCC. Smith contends, inter alia, that the appellees violated his civil rights by denying him proper medical care despite his serious heart condition.
Smith first argues that the district court erred by granting summary judgment in favor of the prison officials. We review de novo. See Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1295 (CA9 1988).
The uncontroverted evidence set forth in the record reflects that the handcuffing incident complained of while Smith was at the SNCC was the result of Smith's own belligerence, was brief in duration, and was followed by the administration of medication and a nurse's visit to Smith. Any discomfort that may have resulted from the above fails to rise to a level of harm sufficient to create a constitutional violation of Smith's eighth amendment rights. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (eighth amendment violation requires showing of deliberate indifference to prisoner's serious medical needs); Jones v. Johnson, 781 F.2d 769, 771 (CA9 1986) (deliberate indifference must have been substantial). The district court did not err on this point.
Smith's next contention is that the district court improperly dismissed his claims against the treating physicians. We review de novo. See Bledsoe v. Webb, 839 F.2d 1357, 1358 (CA9 1988).
The uncontroverted evidence set forth in the record reflects that Smith was treated by both physicians, had been seen on numerous occasions by other medical personnel, was placed on sick call a number of times, and had been visited by prison nurses on at least twelve occasions during a six month time period. Any complaints Smith may have concerning the quality of his medical care constitute nothing more than isolated occurrences of neglect, allegations which cannot and do not rise to the level of constitutional magnitude. See Toussaint v. McCarthy, 801 F.2d 1080, 1111 (CA9 1986) (isolated occurrences of neglect do not amount to showing of deliberate indifference to serious medical needs), cert. denied, --- U.S. ----, 107 S.Ct. 2462 (1987). There was no error on this point.
Smith's third argument challenges the propriety of the district court's denial of his request for the appointment of counsel. We review for an abuse of discretion. See United States v. 30.64 Acres of Land, 795 F.2d 796, 800 (CA9 1986).
While we have little doubt that Smith might have benefitted somewhat from the assistance of counsel, there is nothing in this record to indicate a likelihood that Smith would have succeeded on the merits of his claims, or that the issues involved were sufficiently complex so as to preclude Smith from presenting his claims to the district court. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (CA9 1986). Under these circumstances, the district court did not abuse its discretion in denying the request for appointed counsel.
Smith's final contentions, viz., that the district court failed to consider his opposition papers filed under a previously assigned docket number, and that Smith had been excluded from participating in a deposition, are equally meritless. The record reflects that Smith's papers filed in opposition to a motion for summary judgment were before the district court in the consolidated actions and were considered by the court in rendering its decision. The record further reflects that Smith was not excluded from the taking of any oral testimony, as the information originally sought by the appellees via deposition was provided in the form of copies of medical records instead.
Although the records in this case are fairly extensive, they consist principally of medical records and materials that have little if anything to do with the questions presented. The issues raised are rather simple, and the law with reference to them is well settled. Our examination of the entire record and in particular the facts before the court convinces us that there remains no dispute of material facts between the parties and that the judgment of the district court should be affirmed.
Accordingly, the decision of the district court is AFFIRMED. The remaining motions filed by appellee Dr. Bannen, viz., to dismiss the appeal, for an enlargement of time in which to file a responding brief, and to strike, are DENIED as moot.
The panel unanimously finds that this case is appropriate for submission without oral argument per FRAP 34(a) and CA9 Rule 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 CA9 Rule 36-3
Although Smith filed amended complaints in both actions, leave to amend was formally granted only in the second law suit, viz., CV-S-86-447-LDG, shortly before the entry of the consolidation order