                          NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ERIC CLARK WHEELER,                             No.    17-15514

                Plaintiff-Appellant,            D.C. No.
                                                1:12-cv-00861-DAD-GSA
 v.

KATHLEEN ALISON, Warden at CSATF;               MEMORANDUM*
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                      Argued and Submitted August 5, 2019
                           San Francisco, California

Before: SILER,** HAWKINS, and NGUYEN, Circuit Judges.

      Plaintiff-Appellant Wheeler, a former inmate at the California Substance

Abuse Treatment Facility and State Prison, appeals from the district court’s grant

of summary judgment in his 42 U.S.C. § 1983 action alleging various Eighth



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Amendment violations. We affirm.

      We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We

review de novo a district court’s grant of summary judgment, Lemire v. Cal. Dep’t

of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013), and for abuse of

discretion a district court’s denial of a motion to compel discovery. See Laub v.

U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). We review a district

court’s formulation of questions on a special verdict form for abuse of discretion.

Saman v. Robbins, 173 F.3d 1150, 1155 (9th Cir. 1999).

      The district court properly granted summary judgment on Wheeler’s

excessive force claim. The central inquiry of such a claim is: “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).

Wheeler failed to raise a triable dispute as to whether, objectively, the prison

guards’ conduct violated “contemporary standards of decency,” and subjectively,

that the prison guards acted with “a sufficiently culpable state of mind.” Id. at 8

(citation omitted). Here, the use of force was reasonable to bring the situation

under control, because Wheeler failed to comply with direct orders to lie on the

ground. Furthermore, the district court did not abuse its discretion in finding that

it was undisputed that the officers were unaware of Wheeler’s Post-Traumatic

Stress Disorder diagnosis.


                                         2                                    17-15514
      The district court properly granted summary judgment on Wheeler’s failure

to protect claim, because Wheeler failed to raise a triable dispute as to whether

Warden Alison “[knew] of and disregard[ed] an excessive risk to inmate health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The district court did not

err in finding that Alison was not on notice of a substantial risk of harm to

Wheeler; moreover, even if such a risk was present, Alison was proactive in

addressing such risk by creating two additional custody positions for Wheeler’s

facility. Furthermore, in a § 1983 claim, prison officials in a supervisory role are

not subject to liability for the acts of lower officials based on a respondeat superior

or vicarious liability theory. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir.

2013).

      The district court properly dismissed Wheeler’s Eighth Amendment claims

against PA Ross and Drs. Neubarth and Ancheta, because Wheeler failed to raise

a genuine dispute of material fact as to whether these defendants were deliberately

indifferent in treating his conditions. See Toguchi v. Chung, 391 F.3d 1051, 1060

(9th Cir. 2004) (“A showing of medical malpractice or negligence is insufficient

to establish a constitutional deprivation under the Eighth Amendment.”).

      The district court did not abuse its discretion in denying Wheeler’s motions

to compel discovery because he failed to show that he was prejudiced by the

rulings. “A district court abuses its discretion only . . . if the movant can show how


                                           3                                    17-15514
allowing additional discovery would have precluded summary judgment.”

Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002) (internal

quotation marks and citation omitted).

      The district court did not abuse its discretion in its formulation of Question 1

of the Special Verdict Form. First, Wheeler waived the issue because his counsel

was specifically asked if he had any objection to the special verdict form, and

responded in the negative. Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir.

2019). Regardless, the question adequately focused the jury’s attention on the

injury that Wheeler claims Dr. Mui was deliberately indifferent to. Mangold v.

Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1475 (9th Cir. 1995) (explaining that

district courts have “broad discretion regarding the precise wording of the

instructions and interrogatories” so long as “the issues are fairly presented”

(quoting Carvalho v. Raybestos-Manhattan Inc., 794 F.2d 454, 455 (9th Cir.

1986))).

      AFFIRMED.




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