Narviez Alexander v. Duane Graham

FILED
NOT FOR PUBLICATION MAR 19 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NARVIEZ V. ALEXANDER, No. 13-15045

Plaintiff - Appellant, D.C. No. 3:10-cv-00429-RCJ-
WGC
v.

DUANE GRAHAM; et al., MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Chief Judge, Presiding

Submitted March 10, 2014**

Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

Nevada state prisoner Narviez V. Alexander appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging, among other

claims, deliberate indifference to his serious medical needs. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051,

*
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).
1056 (9th Cir. 2004). We affirm in part, reverse in part, and remand.

The district court properly granted summary judgment for defendant Clark

because Alexander failed to raise a genuine dispute of material fact as to whether

Clark was deliberately indifferent in treating Alexander’s ear. See id. at 1057-58

(neither a prisoner’s difference of opinion concerning the course of treatment nor

mere negligence in diagnosing or treating a medical condition amounts to

deliberate indifference).

The district court did not abuse its discretion in denying Alexander’s motion

for appointment of counsel because Alexander failed to demonstrate “exceptional

circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (providing

the standard of review and requirements for appointment of counsel).

The district court also granted summary judgment on Alexander’s Eighth

Amendment claim that defendant Hanson failed to provide treatment for a painful

abscess for over sixty days. Hanson, however, was required to provide evidence

explaining the delay, and did not do so. Thus, a triable dispute remains as to

whether Hanson acted with deliberate indifference. See Toguchi, 391 F.3d at 1057

(discussing the subjective prong of the deliberate indifference standard); see also

Fed. R. Civ. P. 56(a) (stating movant’s burden on summary judgment).

Accordingly, we reverse as to this claim and remand for further proceedings.

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 Because the district court granted summary judgment for the supervisory

defendants based on its conclusion that Hanson did not act with deliberate

indifference, we also reverse summary judgment as to defendants Baca, Bannister,

Cox, Hartman, Morrow, and Neven, and remand for further proceedings. Because

we reverse as to these claims, we do not consider whether the district court abused

its discretion in denying Alexander’s request for discovery set forth in his

opposition to summary judgment.

Moreover, the district court prematurely dismissed, without leave to amend,

Alexander’s claims in its order filed on January 14, 2011, because it is not

“absolutely clear” that the deficiencies cannot be cured by amendment. Weilburg

v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007); Gordon v. City of Oakland, 627

F.3d 1092, 1094-95 (9th Cir. 2010) (standard of review); Ferdik v. Bonzelet, 963

F.2d 1258, 1261 (9th Cir. 1992) (“[B]efore dismissing a pro se complaint the

district court must provide the litigant with notice of the deficiencies in his

complaint in order to ensure that the litigant uses the opportunity to amend

effectively.”). Accordingly, we reverse and remand for the district court to provide

Alexander with notice of the deficiencies in his complaint and allow him to amend.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

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(per curiam).

The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

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