                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 5 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CORY DEWAYNE MICENHEIMER,                       No.    18-56490

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-04314-CJC-JEM
 v.

P. FINANDER, Chief Medical Executive,       MEMORANDUM*
individual; S. MORRIS, Chief Physician and
Surgeon, individual; P. SHANK, Chief
Executive Officer, Health Care, individual;
M. RABANIPOUR, an individual; JOHN
DOE, an individual,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                          Submitted November 1, 2019**

Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.

      Cory Micenheimer appeals from the district court’s grant of summary

judgment in favor Dr. M. Rabanipour, Dr. P. Finander, Dr. P. Shank, and Dr. S.


      *
             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).
Morris (“prison officials”), finding that they were not deliberately indifferent to his

medical needs regarding the injuries to his knee and finger and that they were

entitled to qualified immunity. The facts of this case are known to the parties, and

we do not repeat them here.

                                           I

      The district court did not err in granting summary judgment on

Micenheimer’s Eighth Amendment claim relative to his knee. Micenheimer has

made no showing that prison officials acted with deliberate indifference to his

medical needs in denying his request to see an orthopedist for further treatment of

his knee. See Helling v. McKinney, 509 U.S. 25, 32 (1993). It is undisputed that

Dr. Rabanipour treated Micenheimer’s knee on multiple occasions after his return

from Palmdale Regional Medical Center, and Micenheimer testified this treatment

was professional and excellent. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

Cir. 2004). Dr. Rabanipour determined there was no swelling or redness, that

Micenheimer could perform his daily activities without difficulty, and, therefore, it

was not medically necessary for him to see an orthopedist. At most, there is a

difference of opinion in appropriate medical treatment, which is insufficient to

constitute deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

1989). Because Dr. Rabanipour is not liable, the other prison officials, who never

treated Micenheimer, are not liable either since there can be no liability under §


                                           2
1983 where there is no underlying constitutional violation, Simmons v. Navajo

County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010), and a § 1983 claim cannot be

premised on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662,

675-77 (2009).

                                          II

      The district court did not err in granting summary judgment on

Micenheimer’s Eighth Amendment claim relative to his finger. It is undisputed

that Micenheimer did not submit an appeal regarding the treatment of his finger

until three months after he had been treated by Dr. Rabanipour, which is more than

the fifteen-day deadline to file such appeals. See Harvey v. Jordan, 605 F.3d 681,

683 (9th Cir. 2010). Because Micenheimer did not exhaust all possible

administrative remedies, his claim is barred. See Booth v. Churner, 532 U.S. 731,

741 (2001). However, even if such claim were not barred because of untimeliness,

Micenheimer has made no showing that prison officials acted with deliberate

indifference to his medical needs in denying his request for surgery to treat his

finger injury. See Helling v. McKinney, 509 U.S. 25, 32 (1993). It is undisputed

that at Palmdale Regional Medical Center, his finger was put back into place so

that he had full range of motion, and upon his return, he received follow-up

treatment by prison medical officials. Again, at most, there is a difference of

opinion which does not constitute deliberate indifference. See Sanchez, 891 F.2d


                                          3
at 242 (9th Cir. 1989). Micenheimer failed to show deliberate indifference here as

well.

                                          III

        The district court did not err in granting summary judgment in favor of

prison officials based on qualified immunity. Viewing the evidence in the light

most favorable to Micenheimer, it would not have been clear to a reasonable

medical doctor, that by reaching certain medical opinions and prescribing certain

treatment based upon examinations of the injured knee and finger, he was engaging

in conduct that violated clearly established law. See Hamby v. Hammond, 821 F.3d

1085, 1092-94 (9th Cir. 2016). Therefore, the district court properly concluded

that prison officials were entitled to qualified immunity and correctly granted

summary judgment in their favor.

        AFFIRMED.




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