                          NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                          FILED
                           FOR THE NINTH CIRCUIT                            MAY 08 2015

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

MICHAEL SHERIDAN,                              No. 13-35999

             Plaintiff - Appellant,            D.C. No. 1:10-cv-00359-EJL

  v.
                                               MEMORANDUM*
BRENT REINKE; CMS, DBA Corizon,
Inc.; PHILIP VALDEZ; ICC-CCA;
NORMA RODRIGUEZ,

             Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted April 8, 2015
                              Seattle, Washington

Before: FERNANDEZ, HAWKINS, and CALLAHAN, Circuit Judges.

       Michael Sheridan (“Sheridan”), an inmate with the Idaho Department of

Corrections (the “IDOC”), appeals the adverse grant of summary judgment on his 42

U.S.C. § 1983 claims against Brent Reinke, the IDOC Director; Corizon, LLC



         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(“Corizon”), the medical care provider for IDOC prisons; Corrections Corporation of

America (“CCA”), the private entity responsible for operating the Idaho Correctional

Center (“ICC”); Philip Valdez, the former ICC warden; and Norma Rodriguez, the

former ICC unit manager. Sheridan also appeals several discovery orders. We affirm.

      Although error to grant summary judgment to Reinke solely on the basis that

he was not personally involved in the treatment of Sheridan’s post-traumatic stress

disorder (“PTSD”), Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074–75

(9th Cir. 2013), any such error was harmless, as Sheridan failed to show that Reinke

engaged in unlawful conduct causally connected to a deprivation of Sheridan’s

constitutional rights, Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013).

      Sheridan also failed to demonstrate that he was deprived of constitutionally

adequate care for his PTSD while at the Idaho State Correctional Institution (“ISCI”).

Sheridan testified that ISCI, in conjunction with the Veterans Administration, offered

weekly group therapy sessions for inmates suffering from PTSD and that he attended

several of those sessions. Sheridan also met with a licensed mental health clinician

when he arrived at ISCI and again approximately one year later. Corizon presented

an expert affidavit opining that group therapy and routine clinician follow up

appointments were medically acceptable forms of treatment for Sheridan’s PTSD.

Sheridan’s own, uncorroborated testimony that he needed individualized


                                          2
psychotherapy administered by a “Ph.D psychologist” is insufficient to create a

question of fact as to whether group therapy and clinician appointments were

medically acceptable. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

Instead, his testimony demonstrates a preference in treatment, which is not a

cognizable Eighth Amendment claim. Estelle v. Gamble, 429 U.S. 97,107–08 (1976).1

      The district court was not required to evaluate a medical care claim against

CCA at the summary judgment phase because that claim was properly dismissed in

the initial screening of Sheridan’s complaint and amended complaint. Id. (affirming

dismissal of pro se plaintiff’s complaint because allegations that prison medical staff

should have performed additional tests and offered additional treatment did not state

Eighth Amendment claim).

          Sheridan concedes that he failed to present sufficient evidence of an objective

risk of substantial harm to withstand summary judgment on his failure-to-protect

claim against CCA, Valdez, and Rodriguez (collectively the “CCA Defendants”).

Sheridan contends only that alleged discovery abuses prevented him from obtaining

evidence necessary to oppose the CCA Defendants’ motion. Because we find the

      1
          In the alternative, Sheridan concedes that he never filed a grievance during
his time at ISCI. Thus, Sheridan failed to exhaust the administrative remedies for his
claim against Corizon. See 42 U.S.C. § 1997e(a). Sheridan’s subjective belief that
the use of the grievance system would be futile, without more, does not excuse his
failure to exhaust. See Sapp v. Kimbrell, 623 F.3d 813, 827 (9th Cir. 2010).

                                            3
district court did not abuse its discretion in declining to reopen discovery, we affirm

summary judgment on Sheridan’s failure-to-protect claim.

      To reopen discovery, Sheridan was required to show good cause, which in turn

requires a showing of diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d

604, 608–09 (9th Cir. 1992). Sheridan’s failure to diligently pursue discovery is

demonstrated in the record and supports the refusal to reopen discovery. Id. (“good

cause” inquiry focuses primarily on diligence of requesting party); Noyes v. Kelly

Servs., 488 F.3d 1163, 1173–74 (9th Cir. 2007). Furthermore, the district court fairly

balanced CCA’s failure to disclose the so-called Higgins Report with Sheridan’s

failure to diligently pursue discovery by permitting Sheridan to submit the Higgins

Report as a supplement to his opposition to the CCA Defendants’ motion.

      On appeal, Sheridan argues that the Defendants withheld other relevant

evidence, including an Independent Monitor Final Action Plan (the “Plan”), a

disposition holding CCA in civil contempt (the “Contempt Order”), and a Special

Master’s Report (the “Balla Report”) filed in two other prisoner lawsuits involving

conditions at ICC and ISCI. The Plan and the Contempt Order are not relevant to

Sheridan’s discovery arguments, given that neither document existed at the time

Sheridan filed his motion to reopen discovery in this case. To the extent that Reinke

or Corizon should have disclosed the Balla Report, their failure to do so did not


                                          4
prejudice Sheridan. Sheridan discussed and cited to the Balla Report in an August 22,

2012, letter filed with the court, demonstrating that Sheridan had access to the report

many months before summary judgment briefing. These additional documents do not

indicate that the district court abused its discretion in declining to reopen discovery.

Cf. Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (pro se plaintiff should be

given extension for discovery if “it is clear that additional relevant evidence remained

to be discovered”).

      Finally, the district court did not abuse its discretion by bifurcating the

proceedings against Corizon. The bifurcation order applied only to Corizon and

simply postponed discovery on Corizon’s policies until after the parties completed

discovery and summary judgment on the issue of inadequate mental health care.

Discovery on Corizon’s policies would be unnecessary if Sheridan did not prove

inadequate care. The district court was permitted to limit discovery to serve judicial

economy, avoid unnecessary discovery, and protect against the unnecessary disclosure

of trade secrets. FED. R. CIV. P. 26(c); Johnson, 975 F.2d at 607 (district court has

“broad discretion in supervising the pretrial phase of litigation” (internal quotation

marks omitted)).

      All pending motions are denied as moot.

      AFFIRMED.


                                           5
