                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        JAN 30 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 SAMUEL ANTHONY ACINELLI, Jr.,                     No.   15-56955

                   Plaintiff-Appellant,            D.C. No. 5:13-cv-00381-AB-PLA

   v.

 BLACKMON, Lt. Supervisor of Work                  MEMORANDUM*
 Assignments, individual capacity and
 official capacity,

                   Defendant-Appellee.

                     Appeal from the United States District Court
                        for the Central District of California
                     Andre Birotte, Jr., District Judge, Presiding

                            Submitted January 18, 2017**

Before:       TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

        Samuel Anthony Acinelli, Jr., a California state prisoner, appeals pro se

from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

deliberate indifference to his serious medical needs arising from his work


        *
             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).
assignment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment because Acinelli

failed to raise a genuine dispute of material fact as to whether defendant Lt.

Blackmon was deliberately indifferent to Acinelli’s health by not removing

Acinelli from his work assignment. See id. at 1057 (a prison official acts with

deliberate indifference only if he or she knows of and disregards an excessive risk

to the prisoner’s health); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994)

(“[T]he Eighth Amendment does not apply [to prison labor conditions] unless

prisoners are compelled to perform physical labor which is beyond their strength,

endangers their lives or health, or causes undue pain.”).

      AFFIRMED.




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