FILED
NOT FOR PUBLICATION SEP 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JENGHIZ K. STEWART, No. 11-16955
Plaintiff - Appellant, D.C. No. 2:11-cv-00997-JWS-
ECV
v.
UNKNOWN PARTIES; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding **
Submitted September 10, 2012 ***
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Jenghiz K. Stewart, an Arizona state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional violations in connection with his bipolar disorder and Tourette
syndrome. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000). We may affirm on any basis supported by the record. Thompson v. Paul,
547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm in part, vacate in part, and
remand.
The district court properly dismissed Stewart’s deliberate indifference and
retaliation claims against prison correctional staff because Stewart failed to allege
sufficient facts to demonstrate that these defendants violated his constitutional
rights. See Farmer v. Brennan, 511 U.S. 825, 834-37 (1994) (Eighth Amendment
claim requires prison official to have a sufficiently culpable state of mind); Rhodes
v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (plaintiff must allege that the
defendants took adverse action because of his protected conduct); see also
Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (conclusory
allegations of law insufficient to state a claim).
Dismissal of Stewart’s Americans with Disabilities Act (“ADA”) claim was
proper because defendants, as individuals, were not liable under Title II of the
ADA. See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
2 11-16955
However, dismissal of Stewart’s remaining claims against the doctors,
nurses, and medical review committee defendants was improper at this early stage
in the proceedings. Stewart’s operative complaint alleges that the medical staff
defendants intentionally misdiagnosed his illnesses and revoked his special needs
order because of his formal and informal complaints about his medical care. As a
result, Stewart alleges he suffered from various physical and emotional injuries.
These allegations are sufficient to state claims for deliberate indifference and
retaliation. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (deliberate
indifference where defendant’s response to a serious medical need is a purposeful
act that causes further harm); Rhodes, 408 F.3d at 567-68 (setting forth elements of
a First Amendment retaliation claim); see also Hebbe v. Pliler, 627 F.3d 338, 342
& n.7 (9th Cir. 2010) (pro se complaint must be held to less stringent standards
despite changes in pleading standard applicable to other civil litigants).
Accordingly, we vacate the judgment in part and remand for further proceedings
consistent with our disposition.
Stewart’s contentions concerning the qualifications and alleged bias of the
district court judge are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
3 11-16955