                                                                            FILED
                         CORRECTED August 9, 2011 +                          JUL 14 2011

                                                                         MOLLY C. DWYER, CLERK
                           NOT FOR PUBLICATION                            U .S. C O U R T OF APPE ALS




                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

MICHAEL HOLTSINGER,                              No. 10-16076

              Plaintiff-Appellant,               D.C. No. 2:03-cv-00732-MCE-
                                                 CMK
vs.

                                                 MEMORANDUM *
Tonya Voros; T. Nolan,

              Defendants-Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                             Submitted June 16, 2011 **
                              San Francisco, California

Before: BYBEE and MURGUIA, Circuit Judges, and EZRA, District Judge.***




        *
             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).
        ***
            The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.+
      California state prisoner Michael Holtsinger appeals the district court’s grant

of summary judgment in favor of Defendant T. Nolan on Holtsinger’s 42 U.S.C. §

1983 action alleging deliberate indifference to his serious medical needs in violation

of the Eighth Amendment. Holtsinger also appeals the district court’s award of $500

in compensatory damages in his favor and against Defendant Tonya Voros. Upon

consideration of the law, arguments, and record, we affirm on both counts. Because

the history of this case is familiar to the parties, we need not recount it here.

       We have reviewed the record de novo, as we must, see Gordon v. Virtumundo,

Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), and agree with the district court that no

genuine issue of material fact exists regarding whether Defendant Nolan was

deliberately indifferent to Holtsinger’s medical needs in violation of the Eighth

Amendment. The undisputed facts show that Nolan, in his position as a psychologist,

did not have the authority to diagnose medical needs or prescribe treatment for such,

nor did he have the authority to order medical treatment and thus could not ensure that

Holtsinger receive emergency medical treatment. See Cunningham v. Gates, 229 F.3d

1271, 1289 (9th Cir. 2000) (explaining that a defendant can be held liable for failure

to intercede to prevent constitutional violation only if he had a realistic opportunity

to do so). Accordingly, the district court did not err in granting summary judgment

to Defendant Nolan.


                                            2
      The court reviews the district court’s damages determination following a bench

trial for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843

(9th Cir. 2004). Although Holtsinger considers the $500 in compensatory damages

awarded to him for Voros’s indifference to be inadequate, a review of the record does

not indicate that the district court clearly erred in making such award.

      AFFIRMED.




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