Nam Ba Nguyen v. NATHANIAL ELAM, Chief Executive Officer, Clinical Services, California Medical Facility;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAM BA NGUYEN,
Plaintiff-Appellant,
v.
NATHANIAL ELAM, Chief Executive
Officer, Clinical Services, California
Medical Facility; et al.,
Defendants-Appellees.
No. 17-17045
D.C. No. 2:13-cv-00963-MCE-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Former California state prisoner Nam Ba Nguyen appeals pro se from the
district court’s summary judgment and dismissal order in his 42 U.S.C. § 1983
action alleging deliberate indifference to his serious medical needs. We have
* 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
SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Doe v. Abbott Labs.,
571 F.3d 930, 933 (9th Cir. 2009). We affirm in part, reverse in part, and remand.
The district court properly dismissed Nguyen’s claims against defendant
Elam because Nguyen failed to allege facts sufficient show that Elam was
personally involved in causing his injury, was aware that any training program was
inadequate, or that a pattern of similar incidents existed. See Connick v.
Thompson, 563 U.S. 51, 60-62 (2011) (noting that actual or constructive notice that
a training program is inadequate and a pattern of similar constitutional violations
are usually necessary to demonstrate deliberate indifference for purposes of failure
to train); Maxwell v. County of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013)
(“A supervisor is liable under § 1983 for a subordinate’s constitutional violations if
the supervisor participated in or directed the violations, or knew of the violations
and failed to act to prevent them.” (citation and internal quotation marks omitted)).
To the extent Nguyen challenges the processing of his grievances regarding
his medical needs, the district court properly dismissed such claims because
“inmates lack a separate constitutional entitlement to a specific . . . grievance
procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
The district court properly granted summary judgment on Nguyen’s
deliberate indifference claims against defendants Osman and Champen on all
claims except Nguyen’s claim regarding defendants’ failure to treat his inability to

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chew solid food, because Nguyen failed to raise a genuine dispute of material fact
as to whether defendants were deliberately indifferent in the treatment of Nguyen’s
injuries. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a prison
official is deliberately indifferent only if he or she knows of and disregards an
excessive risk to inmate health; a difference of opinion concerning the course of
treatment, medical malpractice, and negligence in diagnosing or treating a medical
condition do not amount to deliberate indifference).
However, summary judgment was improper on Nguyen’s deliberate
indifference claims regarding defendants Osman’s and Champen’s failure to treat
his inability to chew solid food, because there is a genuine dispute of material fact
as to whether Nguyen informed Osman and Champen about his inability to chew
solid food. The record is undisputed that Nguyen lost at least fifteen pounds of
weight over a ten-week period. Because Nguyen has raised a genuine dispute of
material fact as to whether Osman and Champen consciously disregarded an
excessive risk to Nguyen’s health, we reverse the judgment in part and remand for
proceedings on these claims only.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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