Michael E. Chavez v. JAMES A. YATES, Warden;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL E. CHAVEZ,
Plaintiff - Appellant,
v.
JAMES A. YATES, Warden; et al.,
Defendants - Appellees.
No. 11-16888
D.C. No. 1:09-cv-01080-OWW-
SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
California state prisoner Michael E. Chavez appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his medical needs and violations of the Americans with Disabilities
FILED
MAR 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

11-16888 2
Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for failure to state a claim 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 Chavez’s ADA claim because Chavez
failed to allege any denial of service based on his disability. See Lovell v.
Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
However, liberally construed, the allegations in Chavez’s pro se complaint
were “sufficient to meet the low threshold for proceeding past the screening stage”
where Chavez alleged that defendants were aware of Chavez’s severe pain and
refused to treat it. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see
also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing objective
and subjective elements of deliberate indifference claim). Accordingly, we reverse
in part the district court’s judgment and remand for further proceedings.
Chavez’s request for appointment of counsel on remand is denied.
AFFIRMED in part; REVERSED in part; REMANDED.

-- 2 of 2 --