John Chavers v. Holbrook ( 2014 )

FILED
NOT FOR PUBLICATION OCT 7 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN R. CHAVERS, No. 13-36142
Plaintiff - Appellant, D.C. No. 2:12-cv-05008-JTR
v.
MEMORANDUM*
HOLBROOK, WSP Superintendant; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
John R. Chavers, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his action alleging deliberate indifference to
his serious medical needs, retaliation, and employment discrimination. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391
*
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).
F.3d 1051, 1056 (9th Cir. 2004). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Chavers’
deliberate indifference claim because Chavers failed to raise a genuine dispute of
material fact as to whether defendants Hammond and Holbrook were deliberately
indifferent by declining to re-prescribe one of his pain medications. See Toguchi,
391 F.3d at 1057-58 (a prison official is deliberately indifferent only if he or she
“knows of and disregards an excessive risk to inmate health”; a mere difference in
medical opinion is insufficient to establish deliberate indifference (citation and
internal quotation marks omitted)).
The district court properly granted summary judgment on Chavers’
retaliation claim because Chavers failed to raise a genuine dispute of material fact
as to whether defendant Hammond discontinued Chavers’ pain medication because
Chavers filed a grievance, or whether Hammond’s actions did not reasonably
advance a legitimate penological goal. See Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the prison
context).
The district court properly granted summary judgment on Chavers’
employment discrimination claim in violation of Title II of the Americans with
Disabilities Act (“ADA”) because Title II of the ADA does not apply to
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employment. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1176-79 (9th
Cir. 1999).
However, viewing the evidence in the light most favorable to Chavers, we
conclude that summary judgment on Chavers’ employment discrimination claim
under the Rehabilitation Act (“RA”) was improper because Chavers raised a
genuine dispute of material fact as to whether defendants’ reasons for not hiring
him were solely by reason of his disability. See id. at 1180-82 (“[U]nlike Title II
of the ADA, the [RA] contain[s] several employment-related provisions.”); Gates
v. Rowland, 39 F.3d 1439, 1445-46 (9th Cir. 1994) (analyzing the RA in the prison
employment setting); see also Horphag Research Ltd. v. Garcia, 475 F.3d 1029,
1035 (9th Cir. 2007) (“In reviewing an order granting summary judgment, we view
the evidence in the light most favorable to the nonmoving party, drawing all
reasonable inferences in his favor.”).
The district court did not abuse its discretion by denying Chavers’ motions
for appointment of counsel because Chavers failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
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The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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