                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUN 29 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CECILIA FRAHER,                                  No. 14-16228

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00951-LJO-MJS

 v.
                                                 MEMORANDUM*
DR. R. MITCHELL; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                        Argued and Submitted June 13, 2016
                             San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges, and LAMBERTH,** Senior District
Judge.

      Plaintiff-Appellant Cecilia Fraher is an inmate in the custody of the California

Department of Corrections and Rehabilitation. She brings this 42 U.S.C. § 1983 action

against Defendant-Appellees Mitchell and Le–a medical doctor and nurse,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Royce C. Lamberth, Senior United States District
Judge for the District of Columbia, sitting by designation.
respectively–alleging inadequate medical treatment in violation of her Eighth

Amendment right to be free from cruel and unusual punishment. The district court

granted defendants’ motion for summary judgment. Possessed of jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm.

      In July of 2009, Fraher underwent an emergency heart valve replacement

procedure to replace her artificial heart valve. Fraher alleges that as a result of that

surgical procedure, she now suffers permanent physical disability. In the months

preceding that surgery, Fraher reported on at least six occasions to the two defendants

complaining of flu-like symptoms. She alleges those symptoms were tell-tale signs

of a potentially life-threatening infection of the heart known as endocarditis, which

is particularly common and problematic in those with artificial heart valves.

According to Fraher, had defendants properly diagnosed her with and treated her for

endocarditis, the eventual replacement of her artificial heart valve and resulting

disability could have been avoided. She contends defendants’ failure to properly

diagnose and treat her symptoms was the result of deliberate indifference.

      To survive defendants’ motion for summary judgment, Fraher was required to

raise a genuine issue of material fact as to both (1) whether defendants acted with

deliberate indifference, and, if so, (2) whether such conduct was the actual and



                                           2
proximate cause of her complained-of Eighth Amendment deprivation. Fed. R. Civ.

P. 56(a); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). She did neither.

      A claim of deliberate indifference within this context requires a showing that

the prison officials in question both knew of and disregarded an excessive risk to

inmate health and safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Where the

complained-of conduct is allegedly inadequate medical care, a prisoner must adduce

evidence demonstrating something more than a mere difference of opinion regarding

the propriety of the care rendered. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

cf. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Rather, an inmate like

Fraher must demonstrate “that the course of treatment the doctors chose was

medically unacceptable under the circumstances” and chosen “in conscious disregard

of an excessive risk to plaintiff’s health.” Jackson, 90 F.3d at 332.

      Below, Fraher’s evidence focused on the similarity between the symptoms she

demonstrated and those symptoms patients suffering from endocarditis typically

demonstrate. Fraher’s underlying theory, then, painted defendants’ conduct as rising

to the level of deliberate indifference in light of the acute risk endocarditis presents

to persons like Fraher who possess artificial heart valves and defendants’ failure to

adequately guard against that risk by properly treating her for endocarditis. But that



                                           3
theory–and the evidence upon which it rests–fails for two reasons. First, we reject it

because Fraher failed to demonstrate that the care she did receive was medically

unacceptable, as required by our precedent. Sanchez, 891 F.2d at 242. Accordingly,

she did nothing more than raise a possible difference of medical opinion as to the

propriety of the care she received. She therefore presented no evidence indicative of

deliberate indifference.

      Second, Fraher’s theory falls short because she failed to present more than a

scintilla of evidence that she indeed suffered from endocarditis or even that her

symptoms were consistent with heart valve failure generally. Rather, as defendants’

uncontroverted evidence established, Fraher’s postoperative evaluation noted no sign

of infection within her heart. As a result, even assuming defendants had acted with

deliberate indifference, Fraher did not demonstrate how proper treatment for

endocarditis would have forestalled her eventual heart valve replacement surgery.

Accordingly, she did not show how defendants’ treatment or lack thereof contributed

to her alleged disability.

      AFFIRMED.




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