SAMUEL WINDHAM, Jr. v. C. WOFFORD, Associate Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL WINDHAM, Jr.,
Plaintiff-Appellant,
v.
C. WOFFORD, Associate Warden; et al.,
Defendants-Appellees.
No. 22-15387
D.C. No.
2:18-cv-02656-WBS-DMC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted January 25, 2023**
San Francisco, California
Before: WALLACE, SILVERMAN, and OWENS, 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
JAN 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Samuel Windham, Jr., appeals pro se from the district court’s summary
judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
Cir. 2004). We affirm.
Windham, an inmate at California Medical Facility in Vacaville, California,
brought a civil rights action pursuant to 42 U.S.C. § 1983, claiming that California
Department of Corrections and Rehabilitation employee defendants—associate
prison wardens Medina and Wofford, doctors Pai and Osman, and nurses Champion
and Inniss-Burton—were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. Windham, who requires medical care to treat
burns on over 75% of his body, alleges that Medina was deliberately indifferent in
how he handled a leak in Windham’s cell; that Wofford was deliberately indifferent
when he denied Windham hydrotherapy and a follow-up visit with a plastic surgeon;
that Pai and Osman were deliberately indifferent because they delayed and denied
follow-up treatment; and that Champion and Inniss-Burton were deliberately
indifferent because they used a type of bandage that Windham claims damaged his
wound and because they falsified his medical progress notes.
While we construe a pro se litigant’s filings liberally, Windham does not
provide specific and distinct arguments in his briefing to demonstrate that there are
genuine issues of material fact for trial. Brazil v. U.S. Dep’t of Navy, 66 F.3d 193,

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199 (9th Cir. 1995); Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
Windham failed to demonstrate a genuine dispute that defendants were deliberately
indifferent to his serious medical needs.
To prevail on a deliberate indifference claim, a plaintiff must establish: (1)
the existence of a serious medical need; and (2) that the defendants’ response to the
need was deliberately indifferent by showing (a) a purposeful act or failure to
respond to a plaintiff’s pain or possible medical need, and (b) harm caused by the
indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006. A mere
“‘difference of medical opinion’ as to the need to pursue one course of treatment
over another [is] insufficient, as a matter of law, to establish deliberate indifference.”
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other
grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). Rather,
Windham must prove that the treatment he received “was medically unacceptable
under the circumstances” and was chosen “in conscious disregard of an excessive
risk” to his health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
While Windham has demonstrated that failure to treat his condition could
result in further significant injury or pain, he fails to allege genuine facts
demonstrating that defendants were consciously treating him in a medically
unacceptable way. Although he alleges that their treatment was “damaging” and
that they took “illegal” actions, Windham must do more than merely raise

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conclusory allegations or speculations—he must designate specific facts showing
that there is a genuine issue for trial. Soremekun v. Thrifty Payless, Inc., 509 F.3d
978, 984 (9th Cir. 2007). He has not done so.
Specifically, Windham does not present material facts to refute the alleged
fact that Medina responded reasonably quickly to resolve a leak in his cell once
Windham filed a reasonable accommodation request, and does not provide facts
beyond his own pleadings that the way Medina responded created his infection.
Windham also does not demonstrate why Wofford’s denial of hydrotherapy is
deliberately indifferent, as it was never prescribed as necessary to avoid further
significant injury or pain; nor does he explain why the numerous opportunities
Wofford allowed him to see a surgeon for follow-up were “medically unacceptable.”
Windham does not present material facts to demonstrate how doctors Pai and
Osman delayed and provided damaging treatment. Rather, the undisputed facts
indicates the contrary: they appeared to have prescribed reasonable care and
followed the recommendations of plastic surgeon specialists—including those from
Dr. Hansen, Windham’s preferred doctor. While Windham may have preferred
seeing a different doctor at a different facility, a person does not have a constitutional
right to their preferred course of treatment. Jackson, 90 F.3d at 332. The district
court was correct to hold that, at most, the claims against Osman and Pai amount to

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Windham’s disagreement concerning his treatment, which does not constitute
deliberate indifference. Toguchi, 391 F.3d at 1058.
Windham does not present material facts to support his contention that nurses
Champion and Inniss-Burton were deliberately indifferent because they used a type
of bandage that he claims damaged his wound. The record shows that the nurses
appeared to comply with the recommended treatment procedures. Windham also
offers no specific support for how they have falsified his medical progress notes.
Thus, this claim, without more, cannot defeat summary judgment, as such
conclusory statements without factual support are insufficient. Surrell v. California
Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).
The district court did not err in granting summary judgment for defendants
because Windham did not provide genuine issues of material fact to support his
allegations.
AFFIRMED.

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