                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 18 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JASON RYAN MCDERMOTT,                            No. 14-35343

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00331-BLW

  v.
                                                 MEMORANDUM*
MATTHEW VALLEY; KIM MILLER;
DIANE KAUFMANN; LINDA GHERKE;
JAN EPP; CLAYTON BUNT; BRUCE
COOPER; PHILLIP PETERSEN;
BENTLY; RORY YORK,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                           Submitted August 14, 2015**
                             San Francisco, California

Before: THOMAS, Chief Judge and HAWKINS and McKEOWN, 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. See Fed. R. App. P. 34(a)(2).
       Jason McDermott appeals the district court’s grant of summary judgment for

defendant prison medical officials on his 42 U.S.C. § 1983 claim. McDermott

alleges that defendants violated the Eight Amendment by demonstrating deliberate

indifference to his persistent constipation. Reviewing de novo and viewing the

evidence in the light most favorable to McDermott, we conclude there is no

genuine issue of material fact and affirm. See Olsen v. Idaho State Bd. of Med.,

363 F.3d 916, 922 (9th Cir. 2004).

       McDermott has failed to show “deliberate indifference to [his] serious

medical needs,” as is required under the Eighth Amendment. Estelle v. Gamble,

429 U.S. 97, 104 (1976). First, although we do not discount his complaints, he has

not demonstrated that his medical need—constipation—is serious because there is

no evidence “that failure to treat it will result in significant injury or the

unnecessary and wanton infliction of pain.” Peralta v. Dillard, 744 F.3d 1076,

1081 (9th Cir. 2014) (en banc) (internal quotation marks omitted). McDermott has

not produced any evidence beyond bare allegations that his constipation rises to the

level of a serious medical need.

       Second, McDermott has failed to show that “[a] prison official [was]

deliberately indifferent to [his] need [in that the official] kn[ew] of and

disregard[ed] an excessive risk to inmate health.” Id. at 1082 (internal quotation

                                             2
marks omitted). To the contrary, the record reflects that McDermott received

continual medical care and that prison medical officials attempted to address his

concerns through various diagnostic tests and treatment plans. McDermott offers

no support for his claim that he is constitutionally entitled to be treated with brand

name, as opposed to generic, Metamucil as he demands.

      AFFIRMED.




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