FILED
NOT FOR PUBLICATION MAY 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO R. JIMENEZ, No. 09-15194
Plaintiff - Appellant, D.C. No. 3:05-CV-00638-LRH-
RAM
v.
GREG COX; GLEN WHORTON; E.K. MEMORANDUM*
MCDANIEL, Warden; ADAM ENDEL;
R. CHAMBLISS; CLAUDE WILLIS;
MARK DRAIN; NEVADA
DEPARTMENT OF CORRECTIONS;
HAROLD CURRY; MIKE SCHEEL,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted May 8, 2012
Pasadena, California
Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Fernando Jimenez appeals the grant of summary judgment to prison officials
in his civil rights action pursuant to 42 U.S.C. § 1983. We have jurisdiction under
28 U.S.C. § 1291. We affirm summary judgment on Jimenez’s due process claim
but reverse and remand his First and Eighth Amendment claims for trial.
The district court correctly granted summary judgment on Jimenez’s due
process claim. Jimenez has failed to identify a liberty interest protected by the Due
Process Clause. Sandin v. Conner, 515 U.S. 472, 474 (1995). At oral argument,
Jimenez made clear that his due process claim is based solely on his designation as
a member of a Security Threat Group (“STG”), without tying that validation to his
extended confinement in administrative segregation. Jimenez has failed to show
that his STG designation in and of itself imposes an “atypical and significant
hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484; see also
Bruce v. Ylst, 351 F.3d 1283, 1287–88 (9th Cir. 2003) (recognizing that “some
evidence” supported prisoner’s identification as a gang member but without
expressly recognizing or creating a protected liberty interest).
The district court erred in granting summary judgment on Jimenez’s First
Amendment retaliation claim. Inmates enjoy a First Amendment right to file
prison grievances, and the Constitution forbids retaliation for the exercise of that
right. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (amended). Jimenez
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has raised triable issues of fact (1) that correctional officer Mark Drain took
adverse actions against Jimenez by making threatening statements and by taking
steps to keep Jimenez in administrative segregation; (2) that Drain’s actions were
in retaliation for Jimenez filing a grievance against Drain’s stepson; (3) that
Drain’s actions chilled the exercise of Jimenez’s First Amendment rights; and
(4) that Drain’s actions did not reasonably advance a legitimate correctional goal.
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
The district court also erred in granting summary judgment on Jimenez’s
deliberate indifference claim. Inmates have an Eighth Amendment right to medical
care while in prison, Estelle v. Gamble, 429 U.S. 97, 103–04 (1976), and Jimenez
has raised a triable issue of fact whether Appellees were deliberately indifferent to
his serious medical needs, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Jimenez claims that he suffered cuts to his flesh, causing pain, bleeding, burning,
swelling, bruises, numbing and permanent scarring, and that a doctor prescribed
medication three weeks after he sustained his injuries, Thus, Jimenez has raised a
triable issue whether his injury was a serious medical one. See Clement v. Gomez,
298 F.3d 898, 902 (9th Cir. 2002) (stinging eyes and skin, coughing, gagging and
trouble breathing from pepper spray were serious medical needs). Jimenez also
claims that he requested medical treatment several times over the course of three
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weeks, including on the day of his injury, Jimenez has raised a triable issue
whether Appellees acted purposefully to delay treatment. See Hunt v. Dental
Dep’t, 865 F.2d 198, 201 (9th Cir. 1989); see also McGuckin v. Smith, 974 F.2d
1050, 1060–61 (9th Cir. 1992) (“[A] finding that the defendant repeatedly failed to
treat an inmate properly . . . strongly suggests that the defendant’s actions were
motivated by deliberate indifference.” (internal quotation marks and citation
omitted)), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
1133 (9th Cir. 1997) (en banc). Finally, Jimenez has raised triable issues of fact
whether the delay in treatment caused him harm. Jimenez has alleged harm
sufficient to raise a triable issue, and this harm need not be substantial, as the
district court erroneously required. McGuckin, 974 F.2d at 1060; . Costs on
appeal are awarded to Jimenez.
AFFIRMED in part; REVERSED and REMANDED in part.
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