                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 15 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JEFFREY W. OLNEY,                                No. 11-35180

              Plaintiff - Appellant,             D.C. No. 6:05-cv-00296-TC
  v.

JOHN HARTWIG, Department of                      MEMORANDUM *
Corrections Doctor, Snake River
Correctional Institution; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                        Ann Aiken, Chief Judge, Presiding

                             Submitted March 6, 2012 **

Before::     B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Jeffrey W. Olney, an Oregon state prisoner, appeals pro se from the district

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

his medical needs and safety relating to his assignment to an upper bunk. We have


        *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004) (summary judgment); Barlow v. Ground, 39 F.3d

231, 233 (9th Cir. 1994) (dismissal under Fed. R. Civ. P. 25). We may affirm on

any ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59

(9th Cir. 2008). We affirm.

      The district court properly granted summary judgment on the claims against

defendants Gilmore, Hill, Hodge and Hicks because Olney did not raise a genuine

dispute of material fact as to whether they were deliberately indifferent to his

safety or were responsible for denying his requests for a low bunk assignment. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (no deliberate indifference unless

prison officials know of and disregard “an excessive risk to inmate health or

safety”).

      The district court properly dismissed Olney’s claims against defendant

Hartwig in his individual capacity because Hartwig is deceased and no party filed a

valid motion to substitute his successor within 90 days of the filing of the

suggestion of death. See Fed. R. Civ. P. 25(a)(1).

      The district court did not explicitly address Olney’s claims against defendant

Hartwig in his official capacity, but dismissal of those claims was also appropriate.

See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (the Eleventh Amendment


                                           2                                       11-35180
bars suits for money damages in federal courts against a state, its agencies, and

state officials acting in their official capacities); Johnson v. Moore, 948 F.2d 517,

519 (9th Cir. 1991) (injunctive relief claims relating to incarceration in a former

prison were moot where prisoner “demonstrated no reasonable expectation of

returning” to the former prison after being transferred).

      AFFIRMED.




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