                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 10 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JOSEPH L. MIZZONI,                               No. 12-17779

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00632-LRH-
                                                 WGC
  v.

DEBRA BROOKS; et al.,                            MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       California state prisoner Joseph L. Mizzoni appeals pro se from the district

court’s dismissal order and summary judgment in his 42 U.S.C. § 1983 action

alleging deliberate indifference, retaliation, and other claims. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo both a dismissal under 28 U.S.C.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§1915(A), Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and summary

judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm

on any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

      Dismissal of Mizzoni’s deliberate indifference claim related to unsanitary

conditions in his cell was proper because, by alleging that prison officials cleaned

his cell to the best of their ability after he complained, Mizzoni essentially

conceded that defendants did not know of or consciously disregard a serious risk to

Mizzoni arising from an unclean cell. See Farmer v. Brennan, 511 U.S. 825, 835-

37 (1994) (setting forth standard for deliberate indifference, and stating that prison

officials cannot be liable unless they know of and disregard an excessive risk to

inmate health or safety); Toguchi, 391 F.3d at 1057-58 (negligence is not sufficient

to state a deliberate indifference claim).

      The district court properly dismissed Mizzoni’s deliberate indifference claim

related to delay in the treatment of his genital rash because Mizzoni failed to allege

facts showing that the delay resulted in further significant injury or the wanton

infliction of pain, and because Mizzoni’s disagreement about the prescribed

ointments does not give rise to an Eighth Amendment violation. See Hallett v.

Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002) (delay in providing care does not


                                             2                                   12-17779
constitute deliberate indifference unless inmate suffers significant harm as a

result); Toguchi, 391 F.3d at 1058 (inmate’s disagreement with physician

regarding his treatment does not amount to deliberate indifference).

      The district court properly granted summary judgment on Mizzoni’s

retaliation claim because Mizzoni failed to raise a genuine dispute of material fact

as to whether defendants acted with retaliatory intent in transferring him to the

prison’s mental health infirmary for observation on two occasions, or that their

actions failed to reasonably advance legitimate correctional goals. See Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (setting forth elements of

retaliation claim in the prison context).

      We do not consider Mizzon’s argument, raised for the first time on appeal,

regarding the allegedly erroneous payment of his filing fees from a “money gift

coupon” in his inmate trust account. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009) (per curiam).

      AFFIRMED.




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