Larry Cleveland v. Corina Chin ( 2018 )


Menu:
  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                        SEP 20 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LARRY CHARLES CLEVELAND,                        No. 17-56448
    Plaintiff-Appellant,            D.C. No. 2:17-cv-01893-DSF-GJS
    v.
    MEMORANDUM*
    CORINA NGO CHIN, M.D., sued in their
    Individual capacities; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Dale S. Fischer, District Judge, Presiding
    Submitted September 12, 2018**
    Before:      LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
    California state prisoner Larry Charles Cleveland appeals pro se from the
    district court’s order dismissing his 
    42 U.S.C. § 1983
     action alleging retaliation
    and deliberate indifference to his serious medical needs. We have jurisdiction
    under 
    28 U.S.C. § 1291
    . We review de novo a dismissal under 28 U.S.C. § 1915A.
    *
    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).
    Wilhelm v. Rotman, 
    680 F.3d 1113
    , 1118 (2012). We affirm in part, reverse in
    part, and remand.
    The district court properly dismissed Cleveland’s deliberate indifference
    claims against defendants Chin, Finander, Frances, Hughes, and Alvarez because
    Cleveland failed to allege facts sufficient to show that any defendant knew of and
    disregarded an excessive risk to his health. See Toguchi v. Chung, 
    391 F.3d 1051
    ,
    1057-58 (9th Cir. 2004) (a prison official acts with deliberate indifference only if
    he or she knows of and disregards an excessive risk to the prisoner’s health; mere
    negligence is insufficient to establish deliberate indifference).
    The district court properly dismissed Cleveland’s deliberate indifference
    claims against defendants Lois and Jones because Cleveland failed to allege that he
    was harmed by the delay in treatment. See Hallett v. Morgan, 
    296 F.3d 732
    , 746
    (9th Cir. 2002) (prisoner alleging deliberate indifference based on delay in
    treatment must show that delay led to further injury).
    The district court dismissed Cleveland’s deliberate indifference and
    retaliation claims against defendant Fitter for failure to state a claim. However,
    Cleveland alleged that defendant Fitter intentionally discontinued plaintiff’s pain
    medication because Cleveland had complained about Fitter’s colleagues to the
    medical board. Liberally construed, these allegations “are sufficient to warrant
    ordering [Fitter] to file an answer.” Wilhelm, 
    680 F.3d at 1116
    ; see also Rhodes v.
    
    2 Robinson, 408
     F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a First
    Amendment retaliation claim in the prison context); Hunt v. Dental Dep’t, 
    865 F.2d 198
    , 201 (9th Cir. 1989) (concluding that defendant acted with deliberate
    indifference where his purposeful act caused the prisoner to suffer unnecessary and
    wanton infliction of pain). We reverse and remand for further proceedings on
    these claims against Fitter only.
    AFFIRMED in part, REVERSED in part, and REMANDED.
    3