NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH A. GRIFFIN,

Plaintiff

- Appellant,

v.

J. BAL; et al.,

Defendants

- Appellees,

and

J. CLARK KELSO; et al.,

Defendants. No. 20

- 15841

D.C. No.

2:10

- cv

- 02525

- MCE

- AC

MEMORANDUM *

Appeal from the United States District Court

for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted March 10, 2021 * *
San Francisco, California

Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.

Kenneth Griffin appeals the district court’s grant of Appellees ’ motion for

* 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). 

# FILED

MAR 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

summary judgment on his 42 U.S.C. § 1983 action alleging deliberate indifference

to his serious med ical needs and denial of his motion for leave to amend the

complaint . We have jurisdiction under 28 U.S.C. § 1291 , and w e affirm.

We review de novo a grant of summary judgment. Sandoval v. County of

Sonoma , 912 F.3d 509, 515 (9th Cir. 2018)

. “We determine, viewing the evidence

in the light most favorable to the nonmoving party, whether there are any genuine

issues of material fact and whether the district court correctly applied the relevant

substantive law.” Wallis v. Princess Cruises, Inc.

, 306 F.3d 827, 832 (9th Cir.

2002) (citing Clicks Billiards, Inc. v. Sixshooters, Inc. , 251 F.3d 1252, 1257 (9th

Cir. 2001))

. We review for abuse of discretion the district court’s denial of leave

to amend. AE ex rel. Hernandez v. C n ty. of Tulare , 666 F.3d 631, 636 (9th Cir.

2012).

The district court properly granted summary judgment to Appellees on

Griffin’s deliberate indifference claim because he “failed to establish the existence

of an element essential to [his] case on which [he] will bear the burden of proof at

trial. ” Triton Energy Corp. v. Square D Co. , 68 F.3d 1216, 1222 (9th Cir. 1995) ;

see also Celotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986)

. Griffin did not

present any evidence that any Appellee “kn[ew] of and disregard[ed] a n excessive

risk to [his] health and safety.” Toguchi v. Chung , 391 F.3d 1051, 1057 (9th Cir.

2004) (“ A prison official acts with ‘ deliberate indifference

. . . only if the [prison3

official] knows of and disregards an excessive risk to inmate health and s afety. ’ ”

( citation omitted and alterations in original ) )

. At most, the evidence, viewed in the

light most favorable to Griffin, could establish that Appellees’ failure to refer him

to an orthopedist sooner was negligent. But “ [m] ere negligence in diagnos ing or

treating a medical condition, without more, does not violate a prisoner ’ s Eighth

Amendment rights.” Id. at 10 57 ( citation omitted)

. Because no genuine issue of

fact was raised regarding Appellees’ “ subjective knowledge and conscious

disregard of a substantial risk of serious injury ” to Griffin, the district court

properly entered summary judgment in their favor. Id. at 1061.

The district court did not abuse its discretion in concluding that amendment

would either be futile or prej udicial to Appellees and denying Griffin’s motion for

leave to amend his complaint on th e se grounds. See Eminence Capital, LLC v.

Aspeon, Inc. , 316 F.3d 1048, 1051

– 52 (9th Cir. 2003).

AFFIRMED.