FILED
NOT FOR PUBLICATION JUN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN X. SINGLETON, No. 12-16036
Plaintiff - Appellant, D.C. No. 1:08-cv-00095-AWI-
GSA
v.
S. LOPEZ, Chief Medical Officer; A. MEMORANDUM*
YOUSSEF, Physician; M. ALI, Senior
Registered Nurse; M. WRIGHT-
PEARSON, SRN III; S. QAMAR, Dr.;
VASQUEZ, Dr.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted May 13, 2014
San Francisco, California
Before: RIPPLE,** SILVERMAN, and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
Kelvin Singleton appeals from the district court’s grant of summary
judgment to Defendants rejecting his suit that alleged deliberate indifference to his
serious medical needs in violation of the Eighth Amendment under 42 U.S.C. §
1983. We have jurisdiction under 28 U.S.C. § 1292. We review a district court’s
grant of summary judgment de novo. Lemire v. Cal. Dep't of Corr. & Rehab., 726
F.3d 1062, 1074 (9th Cir. 2013). We affirm in part and reverse in part the grant of
summary judgment.
I
Singleton claims that officials at Kern Valley State Prison were deliberately
indifferent to two separate medical conditions during his confinement there from
2006 to 2008. First, he argues that prison officials were deliberately indifferent to
his back pain based on (A) their refusal to grant certain accommodations to prison
policies and (B) the substantial delay he faced in receiving effective pain treatment.
On the first issue, the prison officials testified that the accommodations requested
by Singleton – an extra mattress, a lower bunk, and permission not to lie prone
during drills – were not medically necessary and could exacerbate Singleton’s
condition. Although officials at another California state prison had granted some
of these accommodations, a difference of opinion on medical treatment is not
enough to establish deliberate indifference so long as the care provided was
-2-
medically acceptable. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). We
therefore affirm the district court’s grant of summary judgment with respect to this
part of the claim. However, no reasonable justification was offered for the delay
Singleton faced in receiving effective treatment for his back pain. See McGuckin v.
Smith 954 F.2d 1050, 1059 (9th Cir. 1991) (holding that claims of delayed medical
treatment can support deliberate indifference suits). Although some treatment was
given, an inadequate response can support a deliberate indifference claim. Jett v.
Penner, 439 F.3d 1091 (9th Cir. 2006). We reverse the district court’s grant of
summary judgment on this part of Singleton’s first claim.
Second, he argues that the prison officials were deliberately indifferent to
the serious medical need presented by his eye pain and swelling. Singleton first
had made Defendants aware of his eye pain in the summer and fall of 2006, and
requested to see an ophthalmologist. When his request was not granted by the
spring of 2007, Singleton filed an emergency appeal. A nurse told Singleton that
he would get an appointment with an ophthalmologist if he withdrew his appeal.
He did so, but he never received an appointment. When Singleton saw a vision
specialist in the fall of 2007, the specialist confirmed that Singleton had suffered
vision loss. Based on these allegations, Singleton has stated a claim for deliberate
indifference. This is not a case merely of differing medical opinions, but rather, a
-3-
case where Singleton has alleged that the prison officials completely ignored
evidence of his serious medical need. Even if Singleton is unable to show that his
vision loss was caused by the prison official’s failure to timely grant his request for
an ophthalmologist, the continued pain and suffering caused by the eye swelling
could support a suit for deliberate indifference.
II
Singleton also appeals three pre-trial orders, each of which we review for
abuse of discretion. Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 1009 (9th
Cir. 2007) (evidentiary rulings); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
1997) (appointment of counsel).
First, he argues that the magistrate judge abused his discretion in refusing to
admit new evidence, a 2011 prison report in which an ophthalmologist stated that
Singleton had “possibly” suffered a stroke. It is not controlling at the summary
judgment phase that the evidence was hearsay, so long as the evidence could be
presented in an admissible form at trial. Fed. R. Civ. P. 56(c)(2); Fraser v.
Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). However, it was not an abuse of
discretion for the magistrate judge to conclude that the statements were not
relevant to Singleton’s claims, given their timing and the lack of certainty in the
doctor’s statements.
-4-
Second, Singleton argues that the magistrate judge erred in denying
Singleton’s repeated requests for counsel. In cases under 28 U.S.C. § 1915(e)(1),
counsel will be appointed only in “exceptional circumstances,” which requires
consideration of “both the likelihood of success on the merits [and] the ability of
the [plaintiff] to articulate his claims pro se in light of the complexity of the legal
issues involved.” Rand, 113 F.3d at 1525. The magistrate judge reasonably
determined that although Singleton had made serious claims, Singleton was
capable of presenting them to the court without an attorney. That decision was
logical, plausible, and supported by the record, and thus not an abuse of discretion.
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
Finally, Singleton argues that the magistrate judge erred by refusing to
consider Singleton’s request for a court-appointed expert. The magistrate judge
correctly stated that the in forma pauperis statute does not authorize the
appointment of a court-funded expert. However, the magistrate applied the wrong
legal standard, a per se abuse of discretion, Hinkson, 585 F.3d at 1262, when it did
not consider whether to appoint an expert with costs to be shared by the parties.
See McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991), cert. granted, judgment
vacated sub nom. Helling v. McKinney, 502 U.S. 903 (1991) and judgment
reinstated, 959 F.2d 853 (9th Cir. 1992), aff'd sub nom. Helling v. McKinney, 509
-5-
U.S. 25 (1993). We take no position on the outcome of this analysis, but remand
to the district court to consider in the first instance whether Federal Rule of
Evidence 706 supports the appointment of an expert in this case. See McKinney,
924 F.3d at 1510-11.
III
We affirm the district court’s grant of summary judgment with respect to the
denial of accommodations to Singleton’s back pain, but reverse the grant of
summary judgment with respect to the prison official’s delay in providing effective
treatment for that pain, and failure to respond to Singleton’s eye pain and swelling.
We affirm the magistrate judge’s denial of appointed counsel as well as the
exclusion of additional evidence, and remand for consideration of whether to
appoint an expert.
AFFIRMED IN PART, REVERSED IN PART.
Costs on appeal shall be taxed against Appellees. Fed. R. App. P. 39(d)(1).
-6-