Kory T. O’brien v. K. E. Said;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KORY T. O’BRIEN,
Plaintiff-Appellant,
v.
K. E. SAID; et al.,
Defendants-Appellees.
No. 22-15258
D.C. No.
1:18-cv-00741-JLT-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, District Judge, Presiding
Submitted January 22, 2024**
Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, Circuit Judges.
California state prisoner Kory T. O’Brien appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We affirm.
The district court properly granted summary judgment because O’Brien
* 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 22 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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failed to raise a genuine dispute of material fact as to whether Dr. Said was
deliberately indifferent to O’Brien’s medical record indicating an elevated
cholesterol level, or deliberately indifferent by failing to provide treatment for that
condition, which could have contributed to O’Brien’s heart attack. A doctor’s
failure immediately to prescribe a statin after one elevated cholesterol reading in a
patient like O’Brien was not shown to constitute deliberate indifference to a
serious medical need. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.
2004) (prison officials act with deliberate indifference only if they know of and
disregard a risk to the prisoner’s health; medical malpractice, negligence or
difference of opinion concerning the course of treatment does not amount to
deliberate indifference).
We deny O’Brien’s request for judicial notice of the contents of several
medical articles. See Von Saher v. Norton Simon Museum of Art, 592 F.3d 954,
960 (9th Cir. 2010) (explaining that courts may not take judicial notice of
publications for the purpose of showing that the contents of the publications were
in fact true).
We deny O’Brien’s motion for default judgment.
AFFIRMED.

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