                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         FEB 04 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




NEAL WAYNE CAPLINGER,                            No. 14-35190

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00537-BLW

 v.
                                                 MEMORANDUM*
CORRECTIONS CORPORATION OF
AMERICA; TIMOTHY WENGLER;
THOMAS KESSLER; ACEL K.
THACKER; DAN LAMBERT; DAVID
AGLER,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                           Submitted February 2, 2016**
                               Seattle, Washington

Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.




        *
             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).
      Inmate Neal Caplinger appeals from the district court’s grant of summary

judgment to Dr. David Agler and Corrections Corporation of America (“CCA”) on

his 42 U.S.C. § 1983 claim. The facts of this case are known to the parties, and we

do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291.

                                          I

      To establish a claim of deliberate indifference, Caplinger must establish that

Dr. Agler “kn[ew] of and disregard[ed] an excessive risk to inmate health and

safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson

v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). On this record, no

reasonable jury could conclude that Dr. Agler possessed such a mental state.

Caplinger argues Dr. Agler should have done more to expedite his treatment. But

“a complaint 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.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Summary

judgment was proper.

                                         II

      The district court was also correct in granting summary judgment as to

Caplinger’s claim against CCA. To prevail on his claim against CCA, Caplinger

must show that “(1) [h]e was deprived of a constitutional right; (2) [CCA] had a


                                         2
policy; (3) the policy amounted to a deliberate indifference to h[is] constitutional

right; and (4) the policy was the ‘moving force behind the constitutional

violation.’” Mabe v. San Bernadino County, 237 F.3d 1101, 1110–11 (9th Cir.

2001) (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)).

Caplinger argues the “month-long delays” create a genuine issue of material fact as

to whether CCA had a custom of delaying offsite appointments. Nothing in the

record suggests the gaps between appointments were attributable to CCA policy.

      Because no genuine issues of material fact exist that could support

Caplinger’s claims, the district court’s judgment is

      AFFIRMED.




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