NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYAN SCOTT GRAFF, 

Plaintiff-Appellant, 

 v. 

DAVID SHINN, Director; MURRIETTA, 

Unknown; CO II; GUEVARRA, Unknown;

CO III; HALL, Unknown; CO II; 

MILAGAN, Unknown; Sergeant; 

PEWGLESS, Unknown; CO II; DURAGO, 

Unknown; CO II; CHARLES L RYAN, 

named as: Chuck Ryan - Director of Prisons; 

RICHARD PRATT, Assistant Director of 

Prisons; UNKNOWN PARTY, named as: 

Jane Doe - vendor contracted in 2010; 

UNKNOWN PARTY, named as: Jon Doe -

Director of Prisons in 2010; DIGIRO, 

Unknown; Movement Sgt.; MERRIMAN, 

Unknown; Provider; C MILBURN, 

Grievance Coordinator; MANSFIELD, 

Unknown; Grievance Coordinator CO IIII; 

LACY, Unknown; Maintenance; CORIZON, 

Out of State Vendor; CENTURION, Health 

Vendor; L CARR, Director of Nursing; S 

WRIGHT, Health Care Worker; ARTEMISA 

CORDOVA, NMI, 

Defendants-Appellees.

No. 22-16182 

D.C. No. 

2:20-cv-01630-ROS-DMF 

MEMORANDUM*

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 20 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Submitted June 20, 2024**

Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.

Bryan Scott Graff, an Arizona state prisoner, appeals pro se from the district 

court’s judgment dismissing his claim under 42 U.S.C. § 1983 and the Eighth 

Amendment for deliberate indifference to his serious medical needs against 

Centurion of Arizona, LLC (Centurion). We have jurisdiction under 28 U.S.C. § 

1291. We review de novo a district court’s grant of summary judgment, MendiolaMartinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016), and we affirm.

“Prison officials violate the Eighth Amendment if they are ‘deliberately

indifferent to [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 

1076, 1081 (9th Cir. 2014) (en banc) (quoting Estelle v. Gamble, 429 U.S. 97, 104 

(1976)) (cleaned up). Centurion, a private entity, provides correctional healthcare 

services at Graff’s Arizona state prison and treated Graff for hernia pain in 2020. 

We conclude that Graff’s hernia constituted a serious medical need, but the district 

court properly determined that Graff failed to present evidence from which a 

reasonable jury could conclude that Centurion was deliberately indifferent to that

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
3 

serious medical need.

No reasonable jury could conclude based on the evidence in the summary 

judgment record that Centurion “has the policy/practice of not fix[]ing hernias to 

save money.” Graff first brought his hernia pain to Centurion’s attention on July 1, 

2020. Within two weeks, Graff had been seen by both a nurse and a nurse 

practitioner, with the latter ordering a surgical consultation at an outside medical 

facility. Centurion authorized the surgical consultation, which took place on 

September 21, 2020. Graff underwent hernial repair surgery on October 22, 2020, 

less than four months after Graff first brought his concerns to Centurion’s 

attention. These facts could not support a jury’s finding of deliberate indifference

to Graff’s serious medical needs.

Graff points out that the nurse practitioner who first saw him initially 

recommended an ultrasound rather than a surgical consultation. The same 

provider, however, quickly rescinded that recommendation and ordered a surgical 

consultation a day later. This sequence of events does not suggest a policy of 

delay or deliberate indifference to Graff’s serious medical needs.

Graff suggests that his hernia was life-threatening and that Centurion should 

have authorized emergency surgery soon after his July 1, 2020, request. Record 

evidence indicates that Graff’s condition did not constitute a life-threatening

emergency or warrant immediate surgery. Graff’s disagreement with his medical 
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providers, standing alone, does not create a question of deliberate indifference for a 

jury. See Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“A difference 

of opinion between a physician and the prisoner—or between medical 

professionals—concerning what medical care is appropriate does not amount to 

deliberate indifference.”) (quoting Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 

2012)), overruled on other grounds by Peralta, 744 F.3d at 1083.

Graff suggests that Centurion’s policy of delaying hernia surgeries can be 

inferred from nurse practitioner Merriman’s July 22, 2020, question to Graff 

regarding how much time he had left to serve in prison. However, by July 22, 

another nurse practitioner had already ordered a surgical consultation for Graff, 

and that request was pending before Centurion authorized the consultation just two 

days later, on July 24. Graff contends that another inmate “did not get surgery for 

two years,” but Graff neither describes the other inmate’s circumstances nor states 

that the delay occurred after July 1, 2019, when Centurion assumed responsibility 

for inmate healthcare at the prison.

The district court concluded that there is “a question of fact whether Plaintiff 

suffered a constitutional violation due to not being provided adequate pain relief 

medications” before surgery. But even assuming that Merriman was deliberately 

indifferent to Graff’s pain, the district court correctly observed that “there is no 

evidence Merriman acted pursuant to a policy of Centurion; nor is there any 
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evidence that [Graff] continually sought and was denied pain medications from any 

other Centurion providers from which a reasonable jury could infer that []

Merriman’s failure to provide adequate pain relief was part of a ‘permanent and 

well settled’ practice of Centurion.” (quoting Monell v. Dep’t of Soc. Servs. of City 

of New York, 436 U.S. 658, 691 (1978)). 

As the district court correctly determined, there is no evidence that 

Merriman acted pursuant to a policy of Centurion, or that Merriman’s failure to 

provide pain relief was part of a permanent and well-settled practice or custom of 

Centurion. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) 

(holding that, to prevail on a Section 1983 claim against a private entity under 

Monell, the plaintiff must show that a constitutional violation “was caused by an 

official policy or custom” of the private entity); Trevino v. Gates, 99 F.3d 911, 918 

(9th Cir. 1996).

Graff next argues that Centurion staff were deliberately indifferent to his 

medical needs by prescribing him Tylenol 3 with codeine rather than a prescription 

narcotic following his surgery. Graff has presented no evidence that this 

medication substitution constituted deliberate indifference. The medical staff 

explained to Graff that Tylenol 3 was a stronger narcotic than Norco and noted that 

Tylenol 3 was “the strongest medicine that we stock for postoperative pain.” 

Record evidence reflects that Tylenol 3 was an adequate substitute for Norco, and 
6 

the doctor’s prescription explicitly stated that substitutions were permitted. 

Graff also argues that Centurion’s medical staff exhibited deliberate 

indifference to his serious medical needs by failing to provide him with boxer 

briefs following his surgery. Graff did not raise this argument in his response to 

Centurion’s motion for summary judgment in the district court, and the district 

court did not address this issue. We therefore decline to reach it. See Janes v. 

Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).

Finally, Graff contends that Centurion’s failure to provide him with the same 

prescription narcotic pain medication that would have been provided to a nonprisoner violates the Equal Protection Clause of the Fourteenth Amendment. 

Because Graff did not present this issue to the district court, we also decline to

address it for the first time on appeal. See id.

AFFIRMED.