Jeffrey James Faulkner v. Centurion of Arizona;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY JAMES FAULKNER,
Plaintiff-Appellant,
v.
CENTURION OF ARIZONA; et al.,
Defendants-Appellees.
No. 22-15435
D.C. No. 2:20-cv-01603-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted July 6, 2023**
San Francisco, California
Before: D.W. NELSON, SILVERMAN, and JOHNSTONE, Circuit Judges.
Jeffrey James Faulkner, an inmate in the custody of the Arizona Department
of Corrections, appeals pro se the district court’s summary judgment order in his
42 U.S.C. § 1983 action alleging that prison healthcare provider Centurion of
Arizona (“Centurion”) and its medical staff violated his Eighth Amendment rights
* 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
JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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by failing to timely and appropriately treat pain in his left foot, hip, and back. We
have jurisdiction under 28 U.S.C. § 1291. We review the district court’s grant of
summary judgment de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004), and its discovery rulings for an abuse of discretion, Stevens v. Corelogic,
Inc. 899 F.3d 666, 677 (9th Cir. 2018). We affirm.
The district court properly granted summary judgment for Nurse Practitioner
Furar because there was no genuine dispute of material fact as to whether Furar
acted with deliberate indifference to Faulkner’s serious medical needs by ordering
his gabapentin crushed, and by discontinuing the medication and offering
alternatives. The district court properly granted summary judgment for Nurse
Practitioner DeMello because there was no genuine dispute of material fact as to
whether DeMello acted with deliberate indifference to Faulkner’s serious medical
needs by failing to renew his gabapentin prescription and offering him alternatives.
Faulkner did not produce evidence that the “chosen course of treatment was
medically unacceptable under the circumstances and was chosen in conscious
disregard of an excessive risk to” his health. Toguchi, 391 F.3d at 1058 (citations,
internal quotation marks, and alterations omitted).
The district court properly granted summary judgment for Centurion because
there was no genuine dispute of material fact as to whether a Centurion “policy or
custom” caused a violation of Faulkner’s Eighth Amendment rights. See Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (holding that liability
under § 1983 of a private entity acting under color of state law requires proof “a
constitutional violation occurred . . . caused by [the private entity’s] official policy
or custom”). Faulkner did not produce evidence that Centurion policies or customs
amounted to deliberate indifference to Faulkner’s serious medical needs. See
Toguchi, 391 F.3d at 1057–58.
Nor is there reversible error in the district court’s denial of Faulkner’s
untimely motion to compel production nor his request to deny summary judgment
because of any failure to produce documents. The district court correctly
recognized that “[t]hough the conduct of discovery is generally left to a district
court’s discretion, summary judgment is disfavored where relevant evidence
remains to be discovered, particularly in cases involving confined pro se
plaintiffs.” Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). It did not err when
it nevertheless determined summary judgment was appropriate because the
allegedly missing discovery would be “‘fruitless’ with respect to the proof of a
viable claim.” Id. (citation omitted). Further, Faulkner has not shown the district
court abused its discretion in denying his untimely motion to compel discovery for
failure to show good cause. See Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 608–09 (9th Cir. 1992) (establishing that a pretrial scheduling order may be
altered only “upon a showing of ‘good cause’” (citation and internal quotation

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marks omitted)). Nor has he made the required “clearest showing that denial of
discovery result[ed] in actual and substantial prejudice” to disturb the district
court’s exercise of its broad discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th
Cir. 2002) (citation and internal quotation marks omitted).
The district court also did not abuse its discretion in determining that Dr.
Orm was sufficiently qualified to testify about the efficacy of crushed gabapentin.
See United States v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993).
Faulkner’s contention that the district court was biased against him is
unsupported by the record. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.”).
We decline to consider issues not raised before the district court, including
Faulkner’s contentions that his medical records are inauthentic. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). We further decline to
consider issues not specifically raised and argued in the opening brief, including
the district court’s grant of summary judgment for defendants Miller, Mendoza,
Nze, and Lamar. See id.
All pending motions are DENIED.
AFFIRMED.

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