Frank Pickle v. KOHUT, Doctor

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK PICKLE,
Plaintiff-Appellant,
v.
KOHUT, Doctor; MELISSA, Montana
Dept. of Corrections Medical Director;
MOORE, Doctor; BEN, Director of
Nurses; ALL MEMBERS OF THE
MONTANA STATE PRISON MEDICAL
REVIEW BOARD; ROD JOHNSON;
DIRECTOR, Montana Department of
Corrections; SANDY SHAFFER; MISTY,
Nurse,
Defendants-Appellees.
No. 20-35595
D.C. No. 6:18-cv-00029-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted July 29, 2021**
San Francisco, California
FILED
JUL 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Montana prisoner Frank Pickle appeals the district court’s grant of summary
judgment in favor of the Montana Department of Corrections (“MDC”) officials in
this action. We affirm.
The district court properly granted summary judgment for the MDC officials
on Pickle’s deliberate indifference claims under the Eighth Amendment to the
United States Constitution. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285,
291, 50 L. Ed. 2d 251 (1976); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004). The undisputed evidence shows that the MDC officials’ decisions
regarding surgeries and medications were medically acceptable under the
circumstances and not chosen in conscious disregard of a risk to his health.
Pickle’s personal disagreement with those medical decisions does not amount to
evidence of deliberate indifference. See Toguchi, 391 F.3d at 1058; Sanchez v.
Vild, 891 F.2d 240, 242 (9th Cir. 1989).
The district court also properly granted summary judgment in favor of the
MDC officials on Pickle’s access to the courts claim under the First Amendment to
the United States Constitution. See Silva v. Di Vittorio, 658 F.3d 1090, 1101–02
(9th Cir. 2011), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d
1202, 1209 n.6 (9th Cir. 2015); see also Lewis v. Casey, 518 U.S. 343, 348–49,
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116 S. Ct. 2174, 2178–79, 135 L. Ed. 2d 606 (1996). The record lacks evidence
indicating that any of the MDC officials’ alleged actions impeded Pickle’s ability
to litigate this or any other action. See Dilley v. Gunn, 64 F.3d 1365, 1368 n.2 (9th
Cir. 1995); see also Christopher v. Harbury, 536 U.S. 403, 413–14, 122 S. Ct.
2179, 2186, 153 L. Ed. 2d 413 (2002).
We decline to review Pickle’s sexual assault and harassment claims because
he did not properly raise them in the district court. See Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).
In light of our disposition, we deny Pickle’s pending motions.
AFFIRMED.
20-35595 3

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