Raymond Richard Whitall v. Vaun C. Munk

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND RICHARD WHITALL,
Plaintiff-Appellant,
v.
VAUN C. MUNK; RAFAEL CHUAPOCO;
S. GATES, Chief, Healthcare
Correspondence and Appeals Branch; B.
OMOSAIYE; ARTHUR MAJOR, D.D.S.;
D. CALDWELL, CHSA II; K. JEMISON,
Healthcare Correspondence and Appeals
Branch; S. RIVERA, M.D. Chief Executive
Officer; L. NGUYEN, DMD; CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION; MATT ATCHLEY,
Warden; DOES, I-XX, Dental Authorization
Review Committee and/or Dental Program
Health Care Review Committee Members; S.
SAWYER, Correctional Health Services
Administrator; T. NG, DDS,
Defendants-Appellees.
No. 21-16797
D.C. No. 3:20-cv-03415-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted July 5, 2023**
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Raymond Richard Whitall, a California state prisoner, appeals pro se from
the district court’s summary judgment in his action alleging violations of the
Eighth Amendment, as well as the Americans with Disabilities Act (“ADA”) and
the Rehabilitation Act (“RA”). We have jurisdiction under 28 U.S.C. § 1291. We
review de novo, see Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and
we affirm.
The district court properly granted summary judgment to defendants on
Whitall’s Eighth Amendment claim alleging deliberate indifference to his dental
needs, because Whitall failed to raise a genuine dispute of material fact as to
whether defendants’ treatment choices were medically unacceptable, and chosen in
conscious disregard of an excessive risk to Whitall’s health. Id. at 1058 (in order
to prevail on a claim involving choices between alternative courses of treatment, a
prisoner must show that the chosen course of treatment was medically
unacceptable under the circumstances, and chosen in conscious disregard of an
excessive risk to the prisoner’s health).
On appeal, Whitall argues that the question of whether his treatment was
medically unacceptable should be presented to a jury. However, Whithall has not
** 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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presented evidence that the defendants’ treatment was medically unacceptable, and
so summary judgment for the defendants was appropriate. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986) (plaintiff’s complete failure of proof
concerning an essential element of his case necessarily renders all other facts
immaterial).
The district court properly granted summary judgment to defendants on
Whitall’s ADA and RA claims because the defendants’ treatment choices cannot
form the basis of an ADA claim. See Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1022 (9th Cir. 2010) (the ADA is not violated by prison’s failure to attend to
medical needs of disabled prisoners), overruled on other grounds by Castro v.
County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); Zukle v. Regents
of Univ. of Calif., 166 F.3d 1041, 1045 and n.11 (9th Cir. 1999) (listing elements
of a prima facie claim under the Rehabilitation Act; “There is no significant
difference in analysis of the rights and obligations created by the ADA and the
Rehabilitation Act.”).
The district court did not abuse its discretion when it dismissed Whitall’s
related state law claims without prejudice because it had granted summary
judgment on Whitall’s federal claims. See Ove v. Gwinn, 264 F.3d 817, 826 (9th
Cir. 2001) (standard of review; court may decline to exercise supplemental
jurisdiction over related state law claims once it has dismissed all claims over

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which it has original jurisdiction).
The district court did not abuse its discretion in denying Whitall’s motion for
a preliminary injunction because Whitall failed to establish a likelihood of success
on the merits, or that he had raised a serious question going to the merits. See
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)
(stating requirements for a preliminary injunction).
The district court did not abuse its discretion in denying Whitall’s motion to
appoint counsel because Whitall failed to establish any extraordinary
circumstances warranting the appointment of counsel. See, e.g., Terrell v. Brewer,
935 F.2d 1015, 1017 (9th Cir. 1991) (district court did not abuse its discretion in
denying counsel for prisoner where prisoner demonstrated sufficient writing ability
and legal knowledge to articulate his claim; facts alleged and issues raised were not
of substantial complexity; and it was extremely unlikely that prisoner would
succeed on the merits).
The district court did not abuse its discretion in awarding costs to the
defendants because defendants are entitled to recoup their costs in taking Whitall’s
deposition. See 28 U.S.C. § 1920; Draper v. Rosario, 836 F.3d 1072, 1087-89 (9th
Cir. 2016) (factors to be weighed in reviewing an award of costs); Alflex Corp. v.
Underwriters Laboratories, Inc., 914 F.2d 175, 176 n.3, 177 (9th Cir. 1990).
AFFIRMED.

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