Jeffrey W. Olney v. JOHN HARTWIG, Department of Corrections Doctor, Snake River Correctional Institution;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY W. OLNEY,
Plaintiff - Appellant,
v.
JOHN HARTWIG, Department of
Corrections Doctor, Snake River
Correctional Institution; et al.,
Defendants - Appellees.
No. 11-35180
D.C. No. 6:05-cv-00296-TC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann Aiken, Chief Judge, Presiding
Submitted March 6, 2012**
Before:: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Jeffrey W. Olney, an Oregon state prisoner, appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to
his medical needs and safety relating to his assignment to an upper bunk. We have
FILED
MAR 15 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004) (summary judgment); Barlow v. Ground, 39 F.3d
231, 233 (9th Cir. 1994) (dismissal under Fed. R. Civ. P. 25). We may affirm on
any ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59
(9th Cir. 2008). We affirm.
The district court properly granted summary judgment on the claims against
defendants Gilmore, Hill, Hodge and Hicks because Olney did not raise a genuine
dispute of material fact as to whether they were deliberately indifferent to his
safety or were responsible for denying his requests for a low bunk assignment. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (no deliberate indifference unless
prison officials know of and disregard “an excessive risk to inmate health or
safety”).
The district court properly dismissed Olney’s claims against defendant
Hartwig in his individual capacity because Hartwig is deceased and no party filed a
valid motion to substitute his successor within 90 days of the filing of the
suggestion of death. See Fed. R. Civ. P. 25(a)(1).
The district court did not explicitly address Olney’s claims against defendant
Hartwig in his official capacity, but dismissal of those claims was also appropriate.
See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (the Eleventh Amendment

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bars suits for money damages in federal courts against a state, its agencies, and
state officials acting in their official capacities); Johnson v. Moore, 948 F.2d 517,
519 (9th Cir. 1991) (injunctive relief claims relating to incarceration in a former
prison were moot where prisoner “demonstrated no reasonable expectation of
returning” to the former prison after being transferred).
AFFIRMED.

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