Robert Reese, Sr. v. Tom Carey , 407 F. App'x 101 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT D. REESE, Sr., No. 09-16231
Plaintiff - Appellant, D.C. No. 2:05-cv-02336-GEB-
KJM
v.
TOM L. CAREY; et al., MEMORANDUM *
Defendants,
and
A. TRAQUINA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
*
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).
California state prisoner Robert D. Reese, Sr. appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging that the medical care he
received for a broken finger amounted to deliberate indifference. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo both the district court’s
summary judgment ruling, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc), and the district court’s dismissal for failure to exhaust administrative
remedies, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010), and we affirm in
part, reverse in part, and remand.
The district court properly granted summary judgment on the claims against
defendants Kofoed and Traquina because Reese failed to present evidence showing
that either defendant acted with deliberate indifference. See Simmons v. Navajo
County, 609 F.3d 1011, 1019 (9th Cir. 2010) (failure to make correct medical
decisions is not deliberate indifference); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th
Cir. 2009) (defendants are deliberately indifferent only when they act or fail to act
with knowledge of a substantial risk of serious harm).
The district court improperly dismissed Reese’s claim against defendant
Kanan on exhaustion grounds in light of our intervening case law. See Rhodes v.
Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010) (exhaustion requirement is satisfied
if the inmate exhausts administrative remedies on an issue before filing an
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amended complaint raising that issue). Therefore, we remand to allow the district
court to determine whether Reese’s grievance submitted in 2006 exhausted his
claim against Kanan.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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