                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 11 2011

                                                                          MOLLY C. DWYER, CLERK
MATTHEW TAPLET,                                  No. 10-35091               U.S. COURT OF APPEALS



              Plaintiff - Appellant,             D.C. No. 3:06-cv-00221-RRB

  v.
                                                 MEMORANDUM*
LAURA BROOKS; FIRST NAME
UNKNOWN LOTHIAN; FIRST NAME
UNKNOWN STALLMAN; JOHN
WELLS; CHRIS MCMICHAEL,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                             Submitted May 4, 2011**
                                Anchorage, Alaska

Before: ALARCÓN, GRABER, and BYBEE, Circuit Judges.

       Plaintiff-Appellant Matthew Taplet appeals the district court’s grant of

summary judgment dismissing his suit under 42 U.S.C. § 1983, which alleged that


        *
             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. See Fed. R. App. P. 34(a)(2).
prison officials exhibited deliberate indifference to his serious medical needs by

failing to diagnose him with schizophrenia and to prescribe appropriate treatment.

To prove deliberate indifference, a § 1983 plaintiff must show (1) “a serious

medical need by demonstrating that failure to treat a prisoner’s condition could

result in further significant injury or the unnecessary and wanton infliction of

pain,” and (2) that the “defendant’s response to the need was deliberately

indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

quotation marks omitted).

      Taplet introduced (1) his medical records, which show that he has been

diagnosed with schizophrenia in the past (though he has also been labeled a

malingerer), (2) a preliminary expert report that lists the credentials of Taplet’s

expert witness and articulates the standard of care for prisoners suffering from

mental health conditions, and (3) Taplet’s own allegations claiming that prison

officials exhibited deliberate indifference to his medical condition. Viewing the

evidence in the light most favorable to Taplet, see Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004), we conclude that Taplet’s conflicting

medical records are sufficient to demonstrate a genuine issue of material fact over

whether he had a “serious medical need.”




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      However, Taplet has not introduced sufficient evidence to support his claim

that the prison officials’ response to his alleged condition was deliberately

indifferent. Although his preliminary expert report outlines the proper standard of

care owed prisoners by prison officials, it explicitly did not “offer an opinion on

the diagnosis or prognosis of the plaintiff,” nor did it claim that the standard of

care was violated in this case. The expert explicitly stated that he had “reviewed

no materials related to the plaintiff.” Only Taplet’s own allegations support his

claim of deliberate indifference, and “conclusory assertions are insufficient to

avoid summary judgment.” Clouthier v. County of Contra Costa, 591 F.3d 1232,

1252 (9th Cir. 2010).

      Finally, the district court did not abuse its discretion by declining to give

Taplet additional opportunities for discovery. Taplet never submitted an affidavit

setting forth the facts he sought to uncover, that those facts existed, and that they

were essential to opposing summary judgment; this failure “‘is a proper ground for

denying discovery and proceeding to summary judgment.’” Family Home & Fin.

Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)

(quoting Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d

772, 779 (9th Cir. 1998)).

      AFFIRMED.


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