                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 22 2009

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




                              FOR THE NINTH CIRCUIT



ERIC DUARTE,                                       No. 08-17332

               Plaintiff - Appellant,              D.C. No. 5:05-cv-01374-JF

  v.
                                                   MEMORANDUM *
HARPREET GILL; MARTYN BEVAN,

               Defendants - Appellees,

 and

LAURA SMITH, et al.,

               Defendants.



                     Appeal from the United States District Court
                        for the Northern District of California
                      Jeremy D. Fogel, District Judge, Presiding

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      Eric Duarte, a California state prisoner, appeals pro se from the district

court’s summary judgment in favor of prison officials in his 42 U.S.C. § 1983

action alleging violations of the Eighth Amendment arising from inadequate and

delayed medical treatment following a foot injury suffered while he was playing

handball in the prison recreational yard. We have jurisdiction under 28 U.S.C. §

1291. We review de novo a district court’s summary judgment. Morrison v. Hall,

261 F.3d 896, 900 (9th Cir. 2001). We affirm.

      The district court properly entered summary judgment because Duarte failed

to establish the existence of a genuine issue of fact that either defendants Gill or

Bevan acted with deliberate indifference by requiring him to walk, at times

unassisted, on his broken foot. See Conn v. City of Reno, 572 F.3d 1047, 1055–56

(9th Cir. 2009). There is insufficient evidence from which an inference could be

drawn that a substantial risk of serious harm existed by requiring Duarte to walk

relatively short distances on his injured foot. Moreover, the evidence is

insufficient to support a finding that either Gill or Bevan actually believed that

there was a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825,

837 (1994). Thus, Duarte failed to demonstrate a genuine issue of fact regarding

either defendants’ subjective awareness of a substantial risk of serious harm. See

Conn, 572 F.3d at 1056; see also Estelle v. Gamble, 429 U.S. 97, 105 (1976).


                                           2
Moreover, there is insufficient evidence that either Gill or Bevan failed to respond

adequately to Duarte’s condition. See Conn, 572 F.3d at 1056, 1058. Duarte was

seen by the prison nurse within one hour after his injury, and was examined and

treated at the hospital the next day.

      Duarte’s failure to satisfy his burden of showing that Gill was subjectively

aware of a serious medical need, or that he failed to respond adequately to Duarte’s

injury, entitles Gill to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2).

Moreover, because the evidence is similarly deficient as to Bevan, Duarte has

failed to demonstrate a triable issue that Bevan’s conduct violated the Eighth

Amendment. Therefore, the district court properly held that Bevan was entitled to

qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

      AFFIRMED.




                                          3
