Kevin Lisle v. Howard Skolnick ( 2013 )

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN J. LISLE, No. 12-15141
Plaintiff - Appellant, D.C. No. 3:11-cv-00338-ECR-
VPC
v.
HOWARD SKOLNICK; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Nevada state prisoner Kevin J. Lisle appeals pro se from the district court’s
judgment dismissing his action brought under 42 U.S.C. § 1983 and the Americans
with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291. 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).
review de novo a district court’s dismissal under 28 U.S.C. § 1915A and
§ 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part,
reverse in part, and remand.
The district court properly dismissed Lisle’s claim that prison officials
violated the ADA by refusing to allow him to use a leg brace because Lisle failed
to allege facts sufficient to show that prison officials discriminated against him
“solely by reason of disability.” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th
Cir. 2001) (citation and internal quotation marks omitted); see also Simmons v.
Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits
discrimination because of disability, not inadequate treatment for disability.”).
However, the district court erroneously dismissed Lisle’s deliberate
indifference claim because the allegations in the amended complaint liberally
construed were “sufficient to meet the low threshold for proceeding past the
screening stage.” Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (deliberate indifference
standard).
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Accordingly, we reverse in part, and remand with instructions for the district
court to order service of the amended complaint by the United States Marshal.
AFFIRMED in part; REVERSED in part; REMANDED.
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