                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 05 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



WILLIAM M. ENDRES,                               No. 12-16641

               Plaintiff - Appellant,            D.C. No. 3:10-cv-03924-TEH

  v.
                                                 MEMORANDUM *
ELENA TOOTELL, Chief Medical
Officer, San Quentin State Prison,
individually and in her official capacity,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Northern District of California
                   Thelton E. Henderson, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       William M. Endres, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

          *
             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).
deliberate indifference to his serious medical needs. 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 because Endres failed

to raise a genuine dispute of material fact as to whether the delay he experienced in

receiving surgery for his benign brain tumor led to increased suffering or further

injury. See id. at 1058-59 (a prison official acts with deliberate indifference only if

he or she knows of and disregards an excessive risk to the prisoner’s health and

safety); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to establish deliberate

indifference based on a delay in treatment, there must be proof that it resulted in

further significant injury or the wanton infliction of pain); see also Nelson v. Pima

Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and

speculation do not create a factual dispute for purposes of summary judgment.”).

      AFFIRMED.




                                           2                                    12-16641
