FILED
NOT FOR PUBLICATION JAN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPENCER PIERCE, No. 12-17298
Plaintiff - Appellant, D.C. No. 3:10-cv-00239-ECR-
VPC
v.
HOWARD SKOLNIK; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Nevada state prisoner Spencer Pierce appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials
were deliberately indifferent to his serious medical needs by failing to provide him
with adequate treatment for his back pain. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004), and we affirm in part, vacate in part, and remand.
The district court properly granted summary judgment because Pierce failed
to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent in their treatment of his back pain. See id. at 1058 (a prison
official is deliberately indifferent only if he or she knows of and disregards an
excessive risk to an inmate’s health; a prisoner’s difference of opinion concerning
the course of treatment does not amount to deliberate indifference); see also Starr
v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (requirements for establishing
supervisory liability).
The district court did not abuse its discretion by denying Pierce’s motion to
appoint counsel because Pierce failed to demonstrate exceptional circumstances.
See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of
review and requirement of “exceptional circumstances” for appointment of
counsel).
The district court did not abuse its discretion by entertaining defendants’
successive motion for summary judgment. See Hoffman v. Tonnemacher, 593 F.3d
908, 911-12 (9th Cir. 2010) (setting forth standard of review and describing trial
court’s discretion to permit successive motions for summary judgment).
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However, the district court improperly declined to consider Pierce’s claim,
set forth in his Third Amended Complaint alleging that defendant Koehn retaliated
against him for filing grievances. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th
Cir. 2004) (holding that prisoner’s complaint alleging that he was “punished for
filing a grievance” was sufficient to provide notice of claim that he was retaliated
against for exercising his First Amendment rights); see also Karim-Panahi v. L.A.
Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“In civil rights cases where the
plaintiff appears pro se, the court must construe the pleadings liberally and must
afford plaintiff the benefit of any doubt.”). Accordingly, we vacate the judgment
in part and remand with instructions to address the retaliation claim and provide, if
necessary, an opportunity to amend this claim. See Weilburg v. Shapiro, 488 F.3d
1202, 1205 (9th Cir. 2007) (dismissal without leave to amend premature when it is
not “absolutely clear” that the deficiencies of the complaint could not be cured by
amendment); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (“[B]efore
dismissing a pro se complaint the district court must provide the litigant with
notice of the deficiencies in his complaint in order to ensure that the litigant uses
the opportunity to amend effectively.”).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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