                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 02 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
BRIAN DARNELL EDWARDS,                           No. 13-15875

              Plaintiff - Appellant,             D.C. No. 2:10-cv-03461-WBS-
                                                 KJN
  v.

HIGH DESERT STATE PRISON; M. D.                  MEMORANDUM*
MCDONALD, Warden; R. L. GOES; T.
ROBERTSON; M. KEATING; K.
HARPES; RASKI; T. BARRON;
WEDEMEYER; CLEME; D. MOORE; T.
PEREZ; FRED FOULK, Warden; M.
MITCHELL; J. CHENEY; J. TURNER-
GAMBERY; D. SWINGLE,

              Defendants - Appellees.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                           Submitted August 25, 2015**
                             San Francisco, California

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

        *
             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).
      Prisoner Brian Edwards appeals the district court’s grant of summary

judgment in favor of the state with respect to his 42 U.S.C. § 1983 claims under the

Eighth and Fourth Amendments. “We review de novo the district court’s grant of

summary judgment.” Oswalt v. Resolute Indus. Inc., 642 F.3d 856, 859 (9th Cir.

2011). We affirm.

      Edwards alleges that on December 23, 2008, he informed prison personnel

that he was experiencing an asthma attack, yet he waited 2.5 hours to receive

treatment. Under the Eighth Amendment, Edwards “must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.

It is only such indifference that can offend ‘evolving standards of decency’ in

violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Delay in medical treatment “must have caused substantial harm” to violate the

Eighth Amendment. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).

Edwards experienced a delay of only 2.5 hours; he was able to walk on his own

volition to receive treatment; and he suffered no health effects from the incident.

No reasonable jury could conclude that Edwards experienced substantial harm.

See id. at 1333, 1335 (rejecting prisoner’s Eighth Amendment claim where he had




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to wait “several days” to see a physician after complaining of broken pins in his

shoulder).

      Edwards next brings claims against three different prison officials for a May

19, 2009, incident in which he was given a used inhaler. This claim also fails to

meet the legal threshold for an Eighth Amendment violation. The undisputed

evidence shows that his inhaler was mislabeled by the pharmacy staff; however, a

claim that “a physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a constitutional violation

merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Upon

complaining to prison personnel about the used inhaler, Edwards was released to

walk to the medical treatment facility, where he received treatment, and was given

a new inhaler the same day. Edwards produced no evidence that any of the

defendants acted with “conscious disregard of an excessive risk to [Edwards’s]

health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

      Edwards claims that a prison guard decreased the hot water in his cell on an

unspecified day in June 2009, which prevented him from making soup or coffee,

and refused to allow him and his cellmate to shower on August 23, 2009. Neither

isolated incident is sufficient to show that Edwards was denied “the minimal


                                          3
civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834

(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

      Edwards claims that a female prison guard violated the Fourth Amendment

when the guard, who was stationed in a control tower, observed him being strip

searched by a male guard. We first held, in 2011, that a non-emergency, cross-

gender strip search violated the Fourth Amendment. Byrd v. Maricopa Cty.

Sheriff’s Dep’t, 629 F.3d 1135, 1147 (9th Cir. 2011) (en banc). The male detainee

in that case was subjected to a physically invasive cross-gender search of his

genital area. Id. at 1142. Edwards’s search involved far different circumstances

and occurred in 2009, when the constitutionality of occasional cross-gender

observation of searches was not clearly established. The female guard is therefore

entitled to qualified immunity from liability. Pearson v. Callahan, 555 U.S. 223,

231 (2009). We need not and do not consider the underlying Fourth Amendment

question.

      Any other claims and arguments included within Edwards’s lawsuit are

without merit.

      AFFIRMED.




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