NOT FOR PUBLICATION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 APPEALS
2 

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

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

complaint. We have jurisdiction under 28 U.S.C. § 1291, and we 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. Cnty. 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] an 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 [prison 
3 

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

(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 diagnosing or 

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

Amendment rights.” Id. at 1057 (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 prejudicial to Appellees and denying Griffin’s motion for 

leave to amend his complaint on these grounds. See Eminence Capital, LLC v. 

Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003). 

AFFIRMED.