NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON ANDREW SMITH, No. 17-15252
Plaintiff-Appellant, D.C. No. 1:15-cv-01662-LJO-MJS
v.
JOHAL; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Jason Andrew Smith, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional violations in connection with his shoulder injury. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Wilhelm v. Rotman, 680
*
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).
F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A); Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii)). We affirm in part, vacate in part, and remand.
The district court properly dismissed Smith’s deliberate indifference claims
against defendants Johal, Zepp, and Klang because Smith failed to allege facts
sufficient to show that these defendants were deliberately indifferent to Smith’s
shoulder injury and pain. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.
2004) (deliberate indifference is a high legal standard; a difference of medical
opinion concerning the course of treatment, negligence, or medical malpractice
does not amount to deliberate indifference).
However, dismissal of Smith’s deliberate indifference claim against
defendant Youssef was premature because Smith’s allegations regarding the delay
in his physical therapy, liberally construed, are “sufficient to warrant ordering [this
defendant] to file an answer.” Wilhelm, 680 F.3d at 1116. We vacate the dismissal
of Smith’s deliberate indifference claim regarding the delay in his physical therapy
as to defendant Youssef, and remand for further proceedings.
AFFIRMED in part, VACATED in part, and REMANDED.
2 17-15252