NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 25 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT PATRICK K. GIBSON, No. 18-35440

Plaintiff-Appellant, D.C. No. 3:17-cv-05187-RBL v.

MEMORANDUM* WASHINGTON STATE DEPARTMENT OF CORRECTIONS; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Submitted April 17, 2019** Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Washington state prisoner Patrick K. Gibson 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 have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

*

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). 2004). We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment on Gibson’s deliberate indifference claim arising from the medical treatment defendants provided because Gibson failed to raise a genuine dispute of material fact as to whether defendants’ treatment was medically unacceptable or amounted to more than mere negligence. See id. at 1057-60 (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health; medical malpractice, negligence, or a difference of opinion concerning the course of treatment does not amount to deliberate indifference).

The district court properly granted summary judgment on Gibson’s deliberate indifference claim arising from defendants’ failure to comply with their own internal procedures because failure to follow departmental regulations alone does not establish a constitutional violation. See Cousins v. Lockyer, 568 F.3d 1063, 1070-71 (9th Cir. 2009) (failure to follow internal prison policy does not amount to a constitutional violation).

The district court properly granted summary judgment on Gibson’s deliberate indifference claim against defendant Fetroe arising from the delay in Gibson’s medical treatment because Gibson failed to raise a genuine dispute of material fact as to whether Fetroe was personally involved in the delay of Gibson’s treatment. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (discussing

2 18-35440 the requirements for establishing supervisory liability).

The district court erred in granting summary judgment on Gibson’s deliberate indifference claim against defendant Kroha arising from the delay in Gibson’s medical treatment. The district court concluded that Kroha lacked the requisite intent to delay Gibson’s treatment based in part on Kroha’s assertion that in June 2015 she completed a report-of-accident form and placed it in Gibson’s file. However, Gibson offered evidence suggesting that Kroha did not complete this form, which has never been accounted for or located, and that months later Gibson obtained a blank report-of-accident form from his supervisor that Gibson ultimately submitted to the Department of Labor and Industries. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (deliberate indifference “may appear when prison officials deny, delay or intentionally interfere with medical treatment”). Because there is a genuine dispute of material fact as to whether Kroha intentionally delayed Gibson’s medical treatment, we reverse the judgment on this claim only and remand for further proceedings.

Gibson’s request to supplement the record, set forth in his opening brief, is denied. Appellees’ motion to strike portions of Gibson’s opening brief (Docket Entry No. 14) is denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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