FILED
NOT FOR PUBLICATION OCT 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MITCHELL FIELDS, No. 10-15542
Plaintiff - Appellant, D.C. No. 2:08-cv-00659-KJD-
GWF
v.
BRUCE BANNISTER, Medical Director MEMORANDUM *
for Nevada Department of Corrections; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted September 27, 2011 **
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Mitchell Fields, a Nevada state prisoner, appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging numerous constitutional
violations, and claims under the Americans with Disabilities Act (“ADA”). We
*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Barnett v. Centoni,
31 F.3d 813, 815 (9th Cir. 1994) (per curiam) (summary judgment); Wyatt v.
Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (exhaustion). We may affirm on any
basis supported by the record. Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th
Cir. 2002). We affirm in part, vacate in part, and remand.
Summary judgment was proper on the Eighth and Fourteenth Amendment
claims against defendants Bannister and Skolnik because Fields failed to raise a
genuine dispute of material fact as to whether their actions amounted to deliberate
indifference to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825,
837 (1994) (to be deliberately indifferent, a prison official must “know[ ] of and
disregard[ ] an excessive risk to inmate health or safety”); Sanchez v. Vild, 891
F.2d 240, 242 (9th Cir. 1989) (a difference of opinion about the best course of
medical treatment does not amount to deliberate indifference); see also Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises
only upon a showing of personal participation by the defendant.”).
Summary judgment was proper on the ADA claim because Fields did not
raise a triable dispute as to whether he was discriminated against by reason of, or
entitled to an accommodation for, a disability. See O’Guinn v. Lovelock Corr.
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Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (listing elements of a claim under Title II
of the ADA).
However, we vacate the judgment dismissing Fields’s excessive force claim
because defendants have failed to carry their burden of proving that Fields failed to
exhaust administrative remedies. See Wyatt, 315 F.3d at 1116-17, 1120
(incomplete and unauthenticated record is inadequate to establish nonexhaustion).
For instance, because it is unclear from the record when Fields received the
prison’s responses to his grievances, we cannot verify the timeliness of his appeals.
See Nev. A.R. 740.02 § 1.3.2 (time limits shall begin to run from the date an
inmate receives a response for appeal); see also Sapp v. Kimbrell, 623 F.3d 813,
823 (9th Cir. 2010) (exhaustion is not required where administrative remedies are
“effectively unavailable” because of improper screening of grievances).
Accordingly, we vacate the district court’s judgment and remand for further
proceedings on this claim.
Dismissal of Fields’s retaliation claim for failure to exhaust administrative
remedies was also improper because the record shows that both of Fields’s
attempts to file grievances regarding his allegedly retaliatory placement in
administrative segregation were improperly rejected as duplicates of his excessive
3 10-15542
force grievance. Accordingly, we vacate the district court’s judgment and remand
for further proceedings on this claim as well. See Sapp, 623 F.3d at 823.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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