                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PRESTON SHIIRA,                                  No.   15-16338

              Plaintiff-Appellant,               D.C. No. 1:14-cv-00124-HG-KSC

 v.
                                                 MEMORANDUM*
STATE OF HAWAII, et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Helen W. Gillmor, District Judge, Presiding

                          Submitted November 16, 2017**
                             San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,*** District
Judge.




      *
             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).

      ***
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Preston Shiira appeals the district court’s grant of summary judgment to the

Defendants-Appellees on his § 1983 claim. We have jurisdiction under 28 U.S.C. §

1291. We review de novo a district court’s summary judgment ruling. A.G. v.

Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016).

We affirm.

      Mr. Shiira contends that the three Defendant nurses at the Kauai Community

Correctional Center (“KCCC”) were each deliberately indifferent to his serious

medical need when they denied Mr. Shiira his prescription pain medications,

methadone and Percodan. He asserts that their conduct amounted to a violation of

his Eighth Amendment protection against cruel and unusual punishment.1

      A successful claim of deliberate indifference based on inadequate medical

care requires (1) that “the plaintiff must show a ‘serious medical need’ by

demonstrating that ‘failure to treat a prisoner’s condition could result in further

significant injury or the unnecessary and wanton infliction of pain’”; and (2) “the

defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439

F.3d 1091, 1096 (9th Cir. 2006) (citations omitted). The second prong is satisfied



      1
       The Eighth Amendment was made “applicable to the states through the
Due Process Clause of the Fourteenth Amendment[.]” Baze v. Rees, 553 U.S. 35,
47 (2008).


                                           2
by “showing (a) a purposeful act or failure to respond to a prisoner’s pain or

possible medical need and (b) harm caused by the indifference.” Id. Here, the

district court held that Mr. Shiira’s chronic pain condition constituted a serious

medical need. However, the district court also held that Mr. Shiira could not fulfill

the second prong because he had not demonstrated a genuine issue of material fact

as to whether the Defendant nurses were aware of and consciously disregarded an

excessive risk of harm from his pain. See Toguchi v. Chung, 391 F.3d 1051, 1058

(9th Cir. 2004) (“Under a deliberate indifference analysis, we inquire whether ‘the

prison official knows of and disregards an excessive risk to inmate health and

safety.’” (alterations omitted) (quoting Gibson v. Cty. of Washoe, 290 F.3d 1175,

1187 (9th Cir. 2002))).

      Mr. Shiira states that he “experienced nausea, vomiting, terrible stomach

pains . . . was in constant pain . . . was unable to sleep and was unable to walk due

to the pain [he] was experiencing.” For the purposes of summary judgment, we

view the facts in the light most favorable to the non-moving party. Crowley v.

Bannister, 734 F.3d 967, 976 (9th Cir. 2013). Therefore, we assume Mr. Shiira’s

assertions that he was in severe pain during his incarceration to be true. However,

the medical records from Mr. Shiira’s incarceration indicate that none of the

Defendants observed Mr. Shiira to be suffering to the extent that he claims.


                                           3
Furthermore, Mr. Shiira does not specifically maintain that any of the Defendant

nurses personally witnessed his severe pain and ignored it. Even viewing the

record in the light most favorable to Mr. Shiira, Mr. Shiira has not demonstrated a

genuine issue of material fact as to whether the Defendants were aware of his

serious medical need and consciously disregarded an excessive risk of harm when

they refused to provide him with his prescription pain medication. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994).

      By itself, a failure to administer narcotic pain medication does not constitute

a constitutional violation, particularly where, as here, both over-the-counter pain

medication and treatment for potential detoxification symptoms are offered. Mr.

Shiira admits that he declined the other pain medication treatments, and while Mr.

Shiira’s expert testified that withholding all medication would fall below the

applicable standards of medical care, the expert did not testify that offering

alternative pain medications would be medically inappropriate. Nor does Mr.

Shiira’s argument that the Defendants’ conduct violated the Hawaii Pain Patient’s

Bill of Rights, a state law providing advisory guidelines, speak to whether there

was a federal constitutional violation.




                                           4
      For the foregoing reasons, the district court’s summary judgment ruling is

affirmed, as Mr. Shiira has not shown a genuine issue of material fact as to

deliberate indifference.

      AFFIRMED.




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