Patrick Kunkel v. SHERRY LOPEZ, CMO Kern Valley State Prison;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK KUNKEL,
Plaintiff - Appellant,
v.
SHERRY LOPEZ, CMO Kern Valley
State Prison; et al.,
Defendants - Appellees.
No. 14-15363
D.C. No. 1:11-cv-01026-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding**
Submitted December 9, 2014***
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Patrick Kunkel, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
FILED
DEC 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Kunkel consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194
(9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm.
The district court properly dismissed Kunkel’s action because Kunkel
failed to allege facts showing that defendants were deliberately indifferent to
Kunkel’s ankle infections. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th
Cir. 2004) (a prison official is deliberately indifferent only if he or she knows of
and disregards an excessive risk to inmate health; neither a mere difference of
opinion concerning the course of treatment nor negligence in diagnosing or treating
a medical condition amounts to deliberate indifference); see also Starr v. Baca, 652
F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for establishing supervisory
liability); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (failure to
follow internal prison policies does not rise to the level of a constitutional
violation).
AFFIRMED.
14-15363 2

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