SOLVEY v. GATES (2021)

MEMORANDUM **

California state prisoner Stanley H. Solvey appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference and retaliation claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm in part, reverse in part, and remand.

The district court properly dismissed Solvey's claims for retaliation, deliberate indifference to safety, and deliberate indifference regarding his diabetes and seizure medications because Solvey failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must allege facts sufficient to state a plausible claim); see also Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (explaining that a prison official acts with deliberate indifference if the prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it”); Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (elements of a retaliation claim in the prisoner context); Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (deliberate indifference is a high legal standard; medical malpractice, negligence, or a difference of opinion concerning the course of treatment does not amount to deliberate indifference).

The district court dismissed Solvey's claims for deliberate indifference regarding defendant Zepp's treatment of Solvey's testicular cyst because Solvey failed to state a plausible claim. However, Solvey alleged that Zepp refused to provide Solvey with sufficient pain medication as he awaited surgery. Liberally construed, these allegations “are sufficient to warrant ordering [Zepp] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); Toguchi, 391 F.3d at 1057-60 (deliberate indifference standard). We therefore reverse the judgment on this claim only and remand for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED.