                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 14 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHAWN FRANCIS,                                   No.   15-35374

              Plaintiff-Appellant,               D.C. No. 3:12-cv-06023-RBL

 v.
                                                 MEMORANDUM*
STEVEN HAMMOND, M.D., Chief
Medical Officer, Washington Department
of Corrections, in his individual and
official capacities; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 8, 2016
                              Seattle, Washington

Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.

      Shawn Francis appeals the district court’s order granting summary judgment

to the defendants on his Eighth Amendment, state tort negligence, Americans




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
with Disabilities Act (ADA), and Rehabilitation Act claims. We have jurisdiction

under 28 U.S.C. § 1291. Reviewing de novo, and viewing the evidence in the light

most favorable to the non-moving party, see Hamby v. Hammond, 821 F.3d 1085,

1090 (9th Cir. 2016), we affirm.

      1. The district court correctly granted summary judgment on Francis’s

Eighth Amendment claim for deliberate indifference to his serious medical needs

against defendants Warner, Hammond, Kenney, and Smith. A prison official is

deliberately indifferent “only if the official ‘knows of and disregards an excessive

risk to inmate health and safety.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th

Cir. 2014) (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)).

“Even if a prison official should have been aware of the risk, if he was not, then he

has not violated the Eighth Amendment, no matter how severe the risk.” Peralta v.

Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (internal quotation marks and

alterations omitted). Francis offered no evidence that Secretary Warner

participated in his medical decisions or knew about his shoulder injury before

receiving a letter from plaintiff’s counsel in September 2012. Moreover, Warner is

not a doctor, and even if Warner had reviewed Francis’s medical records, Francis

did not show that Warner would have been able to determine whether Francis had a

serious medical need or what the best course of treatment was. See id.


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       Francis argues that Doctors Hammond, Kenney, and Smith were deliberately

indifferent to his shoulder injury because they rejected his medical providers’

recommendations for an orthopedic consultation and an MRI after conservative

treatment failed. A difference of medical opinion is “insufficient, as a matter of

law, to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332

(9th Cir. 1996). As such, Francis did not meet his burden of showing that the

course of treatment the doctors chose “was medically unacceptable under the

circumstances,” or that it was chosen “in conscious disregard of an excessive risk

to plaintiff’s health.” Id. (internal citations omitted).

       2. The district court also correctly dismissed Francis’s Eighth Amendment

and negligence claims against defendants Wells and Hayes. Neither Wells nor

Hayes ordered Francis to lift the box and its contents all at once, and Francis had

time to consider other options before he attempted to lift the box. It was not

foreseeable that Francis would lift the entire box, and Wells and Hayes did not

intentionally interfere with Francis’s lifting restriction. Cf. Lopez v. Smith, 203

F.3d 1122, 1132 (9th Cir. 2000) (plaintiff “can establish deliberate indifference by

showing that officials intentionally interfered with his medical treatment”).

       3. Finally, Francis contends that the Washington Department of Corrections

violated the ADA and section 504 of the Rehabilitation Act by denying a


                                            3
reasonable accommodation for storing his legal materials in his cell in a

confidential manner. Francis bears the burden of demonstrating “‘the existence of

a reasonable accommodation’ that would enable him to participate in the program,

service, or activity at issue.” Pierce v. Cty. of Orange, 526 F.3d 1190, 1217 (9th

Cir. 2008) (quoting Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1046 (9th

Cir. 1999)). We must also consider whether the challenged policy is “reasonably

related” to the prison’s legitimate penological interests. Id.

      Francis did not show that allowing him to store his legal box on the floor

would have been consistent with legitimate penological interests. Nor was he

denied access to his legal materials. At best, he was denied access to the activity of

storing his legal materials in confidential folders. But Francis never requested

folders. Thus, he did not show that he was denied a reasonable accommodation.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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