                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 22 2015

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

HORACE SUBLETT,                                  No. 13-15979

              Plaintiff - Appellant,             D.C. No. 4:11-cv-00539-FRZ

  v.
                                                 MEMORANDUM*
DAVID W ROBERTSON, D.O.,
Physician, Provider at Manzanita Unit,
Tucson; PAUL BOSSELER, N.P.,
Provider at Manzanita Unit, Tucson;
BRUCE E. KANTER, M.D., Physician,
Provider, Barchey Unit, Buckeye;
HELENA VALENZUELA, FHA,
Physician FHA Provider, Manzanita Unit,
Tucson; JOHN E. LOCKHART, Physician
at Barchey Unit, Buckeye; JAMES A.
CLENNEY, Physician, RHA at Manzanita
Unit, Tucson; TAMMY NASH, Physician,
FHA at Manzanita Unit, Tucson; TERRY
L. ALLRED, Physician, FHA at Barchey
Unit, Buckeye; CHARLES L. RYAN,
Director, State Director,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                 Frank R. Zapata, Senior District Judge, Presiding

                     Argued and Submitted January 13, 2015
                            San Francisco California

Before: CLIFTON and NGUYEN, Circuit Judges, and RAKOFF, Senior District
Judge.**

      Horace Sublett appeals the district court’s denial of his motion for a

preliminary injunction and grant of summary judgment for Doctor Lockhart and

Director Ryan. We affirm.

      Even if Dr. Lockhart showed deliberate indifference by failing to ensure

Sublett was seen by a dermatologist following his referral, Sublett did not present

evidence that he suffered any harm as a result. Under Dr. Lockhart’s treatment of

Sublett’s leg sores and ulcers, Sublett’s condition improved at times. When

Sublett saw specialists, they provided similar treatment plans. Further, while it

may have been reasonable to infer that the Unna boot was the preferred treatment

as of July 2010, no evidence established that Dr. Lockhart’s prescribed treatments

were inappropriate in 2008 and 2009 or that use of the Unna boot earlier would

have produced any better results. Therefore, the district court correctly granted

summary judgment for Dr. Lockhart.



        **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                          2
       The district court implicitly addressed Sublett’s permanent injunction claim

against Director Ryan when it granted summary judgment on all claims. To the

extent the district court erred by not expressly addressing the permanent injunction,

any error was harmless. As the district court determined, Sublett did not raise any

genuine issues of material fact regarding success on the merits of his Eighth

Amendment claim against Director Ryan. Sublett’s other treatments were

consistent with that recommended by specialists and helped alleviate his pain.

Although the Doppler study could have helped examine the underlying cause of

Sublett’s pain, no evidence supported the proposition that the results would have

changed Sublett’s treatment plan or reduced his pain. Therefore, Sublett did not

present evidence to suggest the referral denials caused him any harm.

      Because we affirm the district court’s summary judgment on Sublett’s

permanent injunction claim, Sublett’s motion for preliminary injunction is moot.

      AFFIRMED.




                                         3
