SAMUEL ANTHONY ACINELLI, Jr. v. ULYSSES VILLAMIL BANIGA, Physician; K. HILL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL ANTHONY ACINELLI, Jr.,
Plaintiff-Appellant,
v.
ULYSSES VILLAMIL BANIGA, Physician;
K. HILL,
Defendants-Appellees,
and
S. SHIESHA; P. NIXON, R.N.,
Defendants.
No. 19-15916
D.C. No. 1:15-cv-01616-JDP
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Jeremy D. Peterson, Magistrate Judge, Presiding
Submitted June 17, 2022**
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
* 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).
FILED
JUN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Samuel Anthony Acinelli appeals pro se from the district court’s summary
judgment for prison officials in Acinelli’s civil rights action. 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.
Initially, we reject Acinelli’s arguments that Judge Peterson lacked
jurisdiction to enter judgment. See 28 U.S.C. § 636(c). Acinelli consented to
magistrate judge jurisdiction on October 29, 2015, and did not withdraw it. See
Wilhelm v. Rotman, 680 F.3d 1113, 1119 (9th Cir. 2012).
As to Acinelli’s Eighth Amendment claims, we affirm the district court’s
judgment on Acinelli’s claim that Appellees failed to order a colonoscopy, because
Acinelli failed to establish that he had a serious medical need. See id. at 1122
(elements of Eighth Amendment claims).
We also affirm the district court’s judgment on Acinelli’s claims that
Appellees were deliberately indifferent when appellees terminated Acinelli’s
prescription for a liquid nutritional supplement. Appellees believed that the
supplement was not indicated for Acinelli’s syndrome, and that Acinelli would be
able to provide himself with multiple, small meals, which is the treatment of choice
for dumping syndrome, without specific accommodation from medical. Acinelli
failed to rebut this evidence. Moreover, according to Acinelli’s medical records,
he provided himself with multiple, small meals by buying food in the canteen after

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the prescription was terminated. See Toguchi, 391 F.3d at 1057 (prison official
acts with deliberate indifference if the prison official knows of and disregards an
excessive risk to inmate health and safety); Jett v. Penner, 439 F.3d 1091, 1096
(9th Cir. 2006).
Summary judgment was proper on Acinelli’s state law claim that Dr. Baniga
was negligent, and committed medical malpractice, because Acinelli failed to
produce evidence of the relevant standard of care. See Hutchinson v. United
States, 838 F.2d 390, 392-93 (9th Cir. 1988) (explaining and endorsing evidentiary
requirements under California law).
Appellees’ request that this court decide in the first instance whether
Appellees are entitled to qualified immunity, made in their answering brief, is
denied as unnecessary. See, e.g., Thomas v. Ponder, 611 F.3d 1144, 1157 (9th Cir.
2010).
AFFIRMED.

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