                     UNITED STATES COURT OF APPEALS                     FILED
                             FOR THE NINTH CIRCUIT                       JUL 19 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
PATRICK K. GIBSON,                               No. 18-35440

                 Plaintiff-Appellant,            D.C. No. 3:17-cv-05187-RBL
                                                 Western District of Washington,
  v.                                             Tacoma

WASHINGTON STATE DEPARTMENT                      ORDER
OF CORRECTIONS; et al.,

                 Defendants-Appellees.

Before:       McKEOWN, BYBEE, and OWENS, Circuit Judges.

       The memorandum disposition filed on April 25, 2019, is withdrawn. A

replacement memorandum disposition is being filed concurrently with this order.

No further petitions for rehearing will be entertained.

       Appellee Kroha’s petition for panel rehearing (Docket Entry No. 25) is

denied.

       Gibson’s motion to appoint counsel (Docket Entry No. 26) is denied without

prejudice to refiling in the district court.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PATRICK K. GIBSON,                              No. 18-35440

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05187-RBL

 v.
                                                MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,

                Defendants-Appellees.

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

                            Submitted April 17, 2019**

Before:      McKEOWN, BYBEE, and OWENS, Circuit Judges.

      Washington state prisoner Patrick K. Gibson appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2004). We affirm in part, reverse in part, and remand.

      The district court properly granted summary judgment on Gibson’s

deliberate indifference claim arising from the medical treatment defendants

provided because Gibson failed to raise a genuine dispute of material fact as to

whether defendants’ treatment was medically unacceptable or amounted to more

than mere negligence. See id. at 1057-60 (a prison official is deliberately

indifferent only if he or she knows of and disregards an excessive risk to inmate

health; medical malpractice, negligence, or a difference of opinion concerning the

course of treatment does not amount to deliberate indifference).

      The district court properly granted summary judgment on Gibson’s

deliberate indifference claim arising from defendants’ failure to comply with their

own internal procedures because failure to follow departmental regulations alone

does not establish a constitutional violation. See Cousins v. Lockyer, 568 F.3d

1063, 1070-71 (9th Cir. 2009) (failure to follow internal prison policy does not

amount to a constitutional violation).

      The district court properly granted summary judgment on Gibson’s

deliberate indifference claim against defendant Fetroe arising from the delay in

Gibson’s medical treatment because Gibson failed to raise a genuine dispute of

material fact as to whether Fetroe was personally involved in the delay of Gibson’s

treatment. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (discussing


                                          2                                   18-35440
the requirements for establishing supervisory liability).

      The district court erred in granting summary judgment on Gibson’s

deliberate indifference claim against defendant Kroha arising from the delay in

Gibson’s medical treatment. The district court concluded that Kroha lacked the

requisite intent to delay Gibson’s treatment based in part on Kroha’s assertion that

in June 2015 she completed a report-of-accident form and placed it in Gibson’s

file. However, Gibson offered evidence suggesting that Kroha did not complete

this form, which has never been accounted for or located, and that months later

Gibson obtained a blank report-of-accident form from his supervisor that Gibson

ultimately submitted to the Department of Labor and Industries. See Hutchinson v.

United States, 838 F.2d 390, 394 (9th Cir. 1988) (deliberate indifference “may

appear when prison officials deny, delay or intentionally interfere with medical

treatment”). Because there is a genuine dispute of material fact as to whether

Kroha intentionally delayed Gibson’s medical treatment, we reverse the judgment

on this claim only and remand for further proceedings. The district court did not

address whether Kroha was entitled to qualified immunity, and we express no

opinion on that subject.

      Gibson’s request to supplement the record, set forth in his opening brief, is

denied. Appellees’ motion to strike portions of Gibson’s opening brief (Docket

Entry No. 14) is denied.


                                          3                                   18-35440
The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.




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