                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 04 2013

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

WALTER HOWARD WHITE,                             No. 08-17251

              Plaintiff - Appellant,             D.C. No. 3:07-cv-00638-VRW

  v.
                                                 MEMORANDUM*
CHARLES LEE, Health Care Manager,
Salinas Valley State Prison; DONALD C.
POMPAN, Orthopedic Surgeon, Salinas
Valley State Prison; ANDREW STAN
WONG, M.D., Physician, Salinas Valley
State Prison; WILLIAM MCGUINNESS,
Health Care Manager, CA State Prison,
Corcoran; JEANNE S. WOODFORD,
Director CA Dept. of Corrections and
Rehabilitation; MARC SAFRAN,
Orthopedic Surgeon, UCSF Medical
Center,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Vaughn R. Walker, District Judge, Presiding

                      Argued and Submitted January 16, 2013
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**


         Walter White, an inmate at the California-run Salinas Valley State Prison,

has suffered from knee pain due, in part, to a Baker’s cyst in his right knee. White

brought a § 1983 suit against four of his treating physicians, Drs. Pompan, Lee,

Wong, and Safran. The district court dismissed White’s suit as to claims brought

against Drs. Pompan and Lee on the grounds that he did not exhaust his

administrative remedies, and granted Drs. Wong and Safran’s motion for summary

judgment on White’s claims against them. We affirm the judgment of the district

court.

         White failed to exhaust his administrative remedies with regards to Drs.

Pompan and Lee, and therefore cannot initiate a federal civil rights action against

these defendants under the Prison Litigation Reform Act (PLRA). 42 U.S.C. §

1997e(a); Woodford v. Ngo, 548 U.S. 81, 83–85 (2006). White’s prison appeal was

submitted before the complained-of actions by these physicians occurred, and

failed to reference what decisions or actions by Drs. Pompan or Lee adversely

impacted White; see Cal. Code Regs. tit. 15, § 3084.1 (asserting that “identified

grievances” are exhausted only when “included in the originally submitted . . .

         **
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.

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Form”). The district court’s dismissal of White’s claims against Drs. Pompan and

Lee was thus proper.

      White has also not shown that there is a genuine dispute of material fact as

to his claims against Drs. Wong and Safran, and therefore the district court

appropriately granted these defendants’ motion for summary judgment. First,

White received thorough and careful medical treatment from his physicians,

unlikely to constitute medical malpractice, negligence, or gross negligence, let

alone the knowing disregard of “an excessive risk to inmate health or safety,”

Farmer v. Brennan, 511 U.S. 825, 837 (1994), or “unnecessary and wanton

infliction of pain,” required for an Eighth Amendment claim, Estelle v. Gamble,

429 U.S. 97, 104 (1976) (internal quotation marks omitted). White has shown, at

most, that there is a mere difference of medical opinion regarding the ideal course

of treatment, which is “insufficient, as a matter of law, to establish deliberate

indifference.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); see also

Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981)

(noting, also, that a disagreement between a prisoner and a medical professional

over the most appropriate course of treatment cannot give rise to a viable claim of

deliberate indifference).




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      Second, White’s First Amendment free exercise and RLUIPA claims were

appropriately considered and dismissed by the district court. The district court

concluded that there is no “genuine issue for trial” that Dr. Safran “burdened

[White’s] right to exercise his religion.” We agree. Even when viewed in the light

most favorable to White, the facts do not indicate that White’s religious beliefs

impacted his physicians’ chosen course of treatment for his knee pain, which did

not prioritize the removal of White’s Baker’s cyst for reasons entirely unrelated to

his refusal to accept blood transfusions. Defendants’ medically-justified course of

treatment does not impinge on, or substantially burden, White’s exercise of his

religious beliefs, and therefore the district court appropriately granted defendants’

summary judgment as to White’s Eighth Amendment and RLUIPA claims. See 42

U.S.C. § 2000cc-1(a); Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994).

      Third, the district court did not abuse its discretion in denying White’s

requests for additional discovery, for appointment of trial counsel, or for

appointment of a medical expert. White conducted a large amount of informal

discovery, and did not meet his “burden of setting out what further discovery

would reveal that is essential to justify [his] opposition.” Nicholas v. Wallenstein,

266 F.3d 1083, 1088 (9th Cir. 2001) (internal quotation marks omitted). Nor has

White shown himself incapable of articulating his claims pro se, and therefore in


                                          4
need of appointed counsel; the medical issues in White’s case were not particularly

complex and White proved himself a vigorous advocate on his own behalf. Wood

v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990). Finally, White’s request

for a medical expert “to rebut Safran’s expert” would have, at most, established a

disagreement in medical judgment—which is insufficient to support a deliberate-

indifference claim, Estelle, 429 U.S. at 107. In such circumstances, the district

court did not abuse its discretion in denying White’s request for the court to

appoint a Rule 706 witness.

      AFFIRMED.




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