Lawrence Birks v. C. A. TERHUNE, California Department of Corrections;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
08-15841
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE BIRKS,
Plaintiff - Appellant,
v.
C. A. TERHUNE, California Department
of Corrections; et al.,
Defendants - Appellees.
No. 08-15841
D.C. No. 2:05-CV-01105-LKK-
EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N. R. SMITH, Circuit Judges.
Lawrence Birks, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging prison officials
used excessive force against him and acted with deliberate indifference to his
FILED
OCT 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

08-15841 2
serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056
(9th Cir. 2004). We review de novo the district court’s dismissal of claims for
failure to exhaust administrative remedies under the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), and review for clear error its factual
determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We
affirm.
The district court properly granted summary judgment for defendant
McGuire on Birks’s excessive force claim. Birks failed to present evidence
creating a genuine issue of material fact as to whether McGuire applied force “in a
good faith effort to restore discipline and order and not ‘maliciously and
sadistically for the very purpose of causing harm.’” Clement v. Gomez, 298 F.3d
898, 903 (9th Cir. 2002) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).
The district court properly granted summary judgment for McGuire on
Birks’s deliberate indifference claim because Birks failed to present evidence of
injury from the alleged indifference. See Shapley v. Nev. Bd. of State Prison
Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam) (a delay in medical
treatment must lead to further injury to support a claim for deliberate indifference).
To the extent Birks’s claim relating to his medical treatment is that McGuire

-- 2 of 4 --

08-15841 3
breached a duty of medical confidentiality owed to Birks, that claim fails. See
Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010) (prisoners’ privacy
interest in medical treatment information yields to prisons’ interest in maintaining
security).
The district court properly dismissed Birks’s claims against defendants
Runnels and Cummings because Birks failed to exhaust his administrative
remedies before filing suit naming these defendants. See McKinney v. Carey, 311
F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (PLRA “requires exhaustion before
the filing of a complaint and . . . a prisoner does not comply with this requirement
by exhausting available remedies during the course of the litigation”). We
construe the dismissals of Birks’s claims against Runnels and Cummings to be
without prejudice. See Wyatt, 315 F.3d at 1120 (dismissals for failure to exhaust
administrative remedies are without prejudice).
The district court did not abuse its discretion in dismissing Birks’s claims
against defendants Mangis and Barron under Rule 4(m) of the Federal Rules of
Civil Procedure because, despite ample time provided by the district court, Birks
failed to provide information needed by the United States Marshal to serve these
defendants. See Fed. R. Civ. P. 4(m); Oyama v. Sheehan (In re Sheehan), 253 F.3d
507, 511 (9th Cir. 2001) (reviewing for abuse of discretion Rule 4(m) dismissal).

-- 3 of 4 --

08-15841 4
The district court did not abuse its discretion in denying Birks’s request for
additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure
because Birks did not show how allowing him additional discovery would have
precluded summary judgment. See Margolis v. Ryan, 140 F.3d 850, 853-54 (9th
Cir. 1998) (reviewing for abuse of discretion and upholding denial of discovery
under Rule 56(f) where “appellants failed to identify facts, either discovered or
likely to be discovered, that would support their § 1983 claim”).
Birks’s remaining contentions are unpersuasive.
Birks’s pending motions are denied.
AFFIRMED.

-- 4 of 4 --