Joe Dee Stang v. United States of America;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE DEE STANG,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
No. 18-35392
D.C. No. 3:15-cv-02318-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted February 19, 2019**
Before: TROTT, FERNANDEZ, and WATFORD, Circuit Judges.
Joe Dee Stang, a federal prisoner, appeals pro se from the district court’s
summary judgment in his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort
Claims Act (“FTCA”), alleging deliberate indifference to his serious medical needs
* 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
FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and negligence. 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.
The district court properly granted summary judgment on Stang’s Bivens
claim because Stang failed to raise a genuine dispute of material fact as to whether
defendants were deliberately indifferent to Stang’s dental needs. See id. at 1057-
60 (a prison official is deliberately indifferent only if he or she knows of and
disregards an excessive risk to inmate health; medical malpractice, negligence, or a
difference of opinion concerning the course of treatment does not amount to
deliberate indifference); see also Wilhelm v. Rotman, 680 F.3d 1113, 1122 ( 9th
Cir. 2012) (deliberate indifference requires showing a purposeful act or failure to
respond to prisoner’s pain or possible medical need and harm caused by the
indifference).
The district court properly granted summary judgment on Stang’s negligence
claim because Stang offered no expert testimony to establish the standard of care
as required by Oregon law. See Liebsack v. United States, 731 F.3d 850, 854-57
(9th Cir. 2013) (state substantive law applies in FTCA actions); Trees v. Ordonez,
311 P.3d 848, 854 (Or. 2013) (in medical malpractice cases, expert testimony is
generally required to establish the standard of care).
AFFIRMED.

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