FILED
NOT FOR PUBLICATION AUG 1 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE PICKERING, No. 13-16138
Plaintiff - Appellant, D.C. No. 1:11-cv-00937-LJO-DLB
v.
MEMORANDUM*
KEN CLARK, Warden at SATF; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Wayne Pickering, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs and violations of his First Amendment
rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
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).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.
§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)
(dismissal under 28 U.S.C. § 1915(e)(2)). We affirm in part, reverse in part, and
remand.
The district court properly dismissed Pickering’s First Amendment
retaliation claim because Pickering failed to allege facts showing that prison
officials took adverse action against him because he filed grievances. See
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth the elements
of a retaliation claim in the prison context).
The district court properly dismissed Pickering’s claim alleging that
defendants violated his constitutional rights in the processing and handling of his
prison grievances because prisoners do not have a “constitutional entitlement to a
specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th
Cir. 2003).
The district court properly dismissed Pickering’s Eighth Amendment claims
against defendants Green, Salmi, Lee, Rotman, Byers, Lewis, Clark, Metts, Liu,
and Pierre because Pickering failed to allege facts showing that these defendants
were deliberately indifferent to Pickering’s serious medical needs. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately indifferent
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only if he or she “knows of and disregards” an excessive risk to inmate health or
safety); Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (neither a
difference of opinion concerning the course of treatment nor mere negligence in
diagnosing or treating a medical condition amounts to deliberate indifference); see
also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (discussing the
requirements for establishing supervisory liability).
However, dismissal of Pickering’s Eighth Amendment claim against
defendant Enenmoh was premature at this early stage of the proceedings.
Pickering alleged that although Enenmoh knew of Pickering’s pain, Enenmoh
changed Pickering’s physician requests from urgent to routine and from a total
knee replacement surgery to a consultation with an orthopedic surgeon. These
allegations, liberally construed, were “sufficient to warrant ordering [Enenmoh] to
file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); id. at
1123 (doctor’s awareness of need for treatment followed by unnecessary delay in
implementing the prescribed treatment sufficient to plead deliberate indifference).
Accordingly, we reverse the district court’s judgment as to the Eighth Amendment
claim against defendant Enenmoh, and remand for further proceedings.
We do not consider Pickering’s contentions regarding the original complaint
and the first amended complaint because what is before us is the dismissal of the
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second amended complaint.
AFFIRMED in part, REVERSED in part, and REMANDED.
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