923 F. 2d 861 - Borsari v. K Biggs

MEMORANDUM**

Charles F. Borsari, a former Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of defendants in his 42 U.S.C. Sec. 1983 action for deliberate indifference to his medical needs. Borsari requests injunctive relief and damages against the defendants.1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review the district court's grant of summary judgment de novo, Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir.1988), and we affirm.

To state a section 1983 claim for a violation of a prisoner's eighth amendment rights due to inadequate medical care, the prisoner must allege facts evidencing a deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987). "Such indifference may be manifested in two ways. It may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which physicians provide medical care." Hutchinson, 838 F.2d at 394 (citing Estelle, 429 U.S. at 104-05). Differences in judgment between an inmate and prison medical personnel regarding appropriate medical diagnosis or treatment are not enough to state a deliberate indifference claim. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981).

Borsari did not raise any genuine issues of material fact regarding his deliberate indifference to medical needs claim. The essence of Borsari's claim is that while incarcerated at Perryville from March 1987, through 1989, there was a single physician handling his medical condition, despite Borsari's request for an outside medical evaluation. Further, he alleged that medications allowed prisoners were limited, and were provided by a single medical authority without additional opinion. Borsari did not allege he was denied medical treatment. Neither has Borsari alleged that there were serious delays in his treatment. Instead, he was simply dissatisfied with the course of treatment of his back injury and the denial of his request to seek outside medical care. Borsari failed to present outside medical evidence to support his claim that the prison doctor did not properly treat his back condition. These claims, without more, do not establish deliberate indifference to Borsari's serious medical needs. See Estelle, 429 U.S. at 107. Moreover, Borsari has no independent constitutional right to medical care outside the institution. See Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 479 U.S. 930 (1986). Therefore, the district court did not err in granting summary judgment for appellees in Borsari's deliberate indifference claim.

Borsari also alleged a violation of his constitutional rights because of verbal harassment and abuse as a result of his medical condition and his litigation in the federal courts. This conclusory allegation devoid of supporting facts is insufficient to raise a triable issue of fact. See Leer v. Murphy, 844 F.2d 628, 631 (9th Cir.1988) (party opposing summary judgment cannot rest on conclusory allegations but must set forth specific facts that show there is a genuine issue for trial).2

AFFIRMED.