Donald Joshua Smith v. DHARMYIR SINGH, Doctor;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD JOSHUA SMITH,
Plaintiff-Appellant,
v.
DHARMYIR SINGH, Doctor; et al.,
Defendants-Appellees.
No. 23-15351
D.C. No.
2:20-cv-00101-TLN-JDP
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted March 27, 2024**
San Francisco, California
Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.
Donald Joshua Smith appeals pro se from the district court’s grant of
summary judgment to Defendant Dr. Dharmyir Singh.1 Smith alleges that Dr.
* 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).
1 Smith’s motions for default judgment are DENIED. Dkt. Nos. 18, 20. To
the extent Smith intends to invoke forfeiture, Dr. Singh had already timely filed an
answering brief when Smith filed his motions.
FILED
MAR 27 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Singh was deliberately indifferent to his serious medical needs while incarcerated
in violation of the Eighth Amendment. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004), and we affirm.
The district court properly granted summary judgment for Dr. Singh because
Smith presented no evidence that the treatment Dr. Singh provided “was medically
unacceptable under the circumstances, and was chosen in conscious disregard of an
excessive risk to [his] health.” Id. at 1058 (quotation marks omitted). Dr. Singh
saw Smith twice over two months for pain in his arm and back. Dr. Singh
conducted physical examinations and reviewed an x-ray that showed no
abnormalities. Dr. Singh ordered physical therapy, prescribed Tylenol, and
changed Smith’s work classification to limited duty with weight restrictions. Dr.
Singh diagnosed Smith with epicondylitis, or “tennis elbow,” which is supported
by the physical therapy assessments.
Smith argues that Dr. Singh should have ordered imaging and/or surgery and
released him from work duties, but “[a] difference of opinion between a physician
and the prisoner . . . concerning what medical care is appropriate does not amount
to deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir.
2016) (quotation marks omitted).
Because we can affirm the grant of summary judgment solely on the ground

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that Smith presented no evidence that Dr. Singh was deliberately indifferent to
Smith’s serious medical needs, we need not consider the issue of qualified
immunity.
AFFIRMED.

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