                          NOT FOR PUBLICATION                          FILED
                   UNITED STATES COURT OF APPEALS                      AUG 10 2020
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

DONALD ALLEN GOSNEY,                           No.   19-35291

               Plaintiff-Appellant,            D.C. No. 6:16-cv-01072-SB

 v.
                                               MEMORANDUM*
MIKE GOWER, ODOC Assistant Director;
et al.,

               Defendants-Appellees.

                  Appeal from the United States District Court
                            for the District of Oregon
                Stacie F. Beckerman, Magistrate Judge, Presiding

                           Submitted August 6, 2020**
                            San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Donald Gosney, proceeding pro se, appeals the district court’s order granting

summary judgment for Appellees. We have jurisdiction under 28 U.S.C. § 1291




      *
          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).
and, on de novo review, Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir.

2018), we affirm.

      The district court did not err in granting summary judgment on Gosney’s

deliberate indifference claims. Establishing deliberate indifference to a serious

medical need requires showing: (1) failure to treat a prisoner’s condition could result

in further significant injury or the unnecessary and wanton infliction of pain; and (2)

the defendant’s response to the need was deliberately indifferent.         Wilhelm v.

Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett v. Penner, 439 F.3d 1091,

1096 (9th Cir. 2006)). Here, the record demonstrates that neither Nurse Gruenwald

nor the Therapeutic Level of Care Committee (“TLC”) were deliberately indifferent

to Gosney’s hip problems by not instantly approving him for hip replacement

surgery. Rather, with Gosney’s hip pain in mind, they prescribed an alternative

course of treatment to prevent premature surgery and determine whether his pain

could be effectively managed without surgery. When that proved insufficient, Nurse

Gruenwald recommended surgery, which the TLC ultimately approved. Under these

circumstances, we do not find the choice of treatment “medically unacceptable” and

“chose[n] in conscious disregard of an excessive risk to [Gosney’s] health” to

withstand summary judgment on his deliberate indifference claims. See Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).




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      Along these lines, Gosney’s claims that Appellees violated the Americans

with Disabilities Act (“ADA”) by denying his requests for a cane, bathroom

modifications, and a mobility assistive device do not survive summary judgment.

“The ADA prohibits discrimination because of disability, not inadequate treatment

for disability.” Simmons v. Navajo County, Arizona., 609 F.3d 1011, 1022 (9th Cir.

2010), overruled on other grounds by Castro v. County of Los Angeles, 833 F.3d

1060 (9th Cir. 2016) (en banc). As Appellees found the requested assistive devices

not medically necessary to Gosney’s treatment, their denial of his request does not

amount to an ADA violation.

      AFFIRMED.




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