FILED
NOT FOR PUBLICATION AUG 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAY LYNN PEMBER, No. 15-15627
Plaintiff-Appellant, D.C. No. 2:11-cv-02332-SMM
v.
MEMORANDUM*
AL RAMOS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges
Arizona state prisoner Jay Lynn Pember appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We
*
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).
affirm in part, reverse in part, and remand.
The district court granted summary judgment for defendant Dr. Baird
because it found that the record showed a mere difference in medical opinion
regarding the need for surgery and no personal participation by Dr. Baird in
Pember’s alleged lack of adequate pain medication. However, there is nothing in
the existing record that shows why Dr. Baird failed to schedule Pember for surgery
in 2009 and as a result, there is a genuine dispute of material fact as to whether Dr.
Baird’s alleged failure to schedule Pember for surgery in 2009 and his alleged
inadequate treatment of Pember’s herniated disc and related pain was deliberately
indifferent. See Fed. R. Civ. P. 56(a) (stating movant’s burden on summary
judgment); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (plaintiff can
show deliberate indifference if “the course of treatment the doctors chose was
medically unacceptable under the circumstances”). Accordingly, we reverse the
judgment for Dr. Baird and remand for further proceedings.
Because Pember only challenges summary judgment on his deliberate
indifference claim against Dr. Baird, we affirm the remainder of the district court’s
summary judgment.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
2 15-15627