                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 08 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DANTE LOVE,                                      No. 11-15229

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01086-WBS-
                                                 GGH
  v.

EILYA MODHADDAM,                                 MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: NOONAN and MURGUIA, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Plaintiff-Appellant Dante Love (“Appellant” or “Love”) appeals the district

court’s denial of his request for additional discovery pursuant to Fed. R. Civ. P.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Robert J. Timlin, United States District Judge for the
Central District of California, sitting by designation.
56(f) (the predecessor to current Fed. R. Civ. P. 56(d)) and the attendant adverse

grant of summary judgment on his 42 U.S.C. § 1983 action alleging that

Defendant-Appellee Dr. Eilya Modhaddam (“Appellee” or “Modhaddam”), a

prison physician at California State Prison Sacramento, acted with deliberate

indifference to Love’s serious medical needs. In particular, Love argues on appeal

that he needed a copy of the transcript of his own deposition in order to present

critical facts to oppose Modhaddam’s motion for summary judgment, and the

district court’s failure to provide him with a copy of the deposition transcript

pursuant to Fed. R. Civ. P. 56(f) warrants a reversal of the summary judgment

granted in Modhaddam’s favor. We have jurisdiction under 28 U.S.C. § 1291 and

review for an abuse of discretion a district court’s decision denying discovery

under former Fed. R. Civ. P. 56(f). Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.

2004). We affirm.

      Love could have provided the district court with an affidavit or declaration

attesting to his personal belief that he never suffered a heart attack prior to his

February 7, 2008 treatment by Modhaddam. Rodriguez v. Airborne Express, 265

F.3d 890, 902 (9th Cir. 2001). Therefore, Love has failed to show that he needed a

copy of the transcript of his own deposition in order to create a genuine issue of

this fact that he asserts on appeal was essential to justify his opposition to


                                            2
Modhaddam’s summary judgment motion. As a result, the district court did not

abuse its discretion by denying Love’s discovery request because the requested

discovery was “‘fruitless’ with respect to the proof of a viable claim.” Jones, 393

F.3d at 930-31 (where Fed. R. Civ. P. 56(f) motion covers “evidence relating

entirely to facts within [detained pro se litigant’s] own control,” then additional

discovery would not have made a difference as to detainee’s ability to present

relevant evidence, making such discovery fruitless.).

      In addition, Love has failed to show that his personal belief that he had never

suffered a heart attack prior to February 7, 2008, creates a genuine issue of material

fact as to whether Modhaddam was deliberately indifferent to Love’s serious

medical needs in violation of the Eighth Amendment, also making his request for

the transcript of his deposition fruitless under Jones. See also Klingele v.

Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (“If further discovery could not

elicit evidence that would raise genuine issues of material fact, summary judgment

would be appropriate.”).

      AFFIRMED.




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