Larry Charles Cleveland v. CORINA NGO CHIN, M.D., sued in their Individual capacities;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY CHARLES CLEVELAND,
Plaintiff-Appellant,
v.
CORINA NGO CHIN, M.D., sued in their
Individual capacities; et al.,
Defendants-Appellees.
No. 17-56448
D.C. No. 2:17-cv-01893-DSF-GJS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
California state prisoner Larry Charles Cleveland appeals pro se from the
district court’s order dismissing his 42 U.S.C. § 1983 action alleging retaliation
and deliberate indifference to his serious medical needs. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Wilhelm v. Rotman, 680 F.3d 1113, 1118 (2012). We affirm in part, reverse in
part, and remand.
The district court properly dismissed Cleveland’s deliberate indifference
claims against defendants Chin, Finander, Frances, Hughes, and Alvarez because
Cleveland failed to allege facts sufficient to show that any defendant knew of and
disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,
1057-58 (9th Cir. 2004) (a prison official acts with deliberate indifference only if
he or she knows of and disregards an excessive risk to the prisoner’s health; mere
negligence is insufficient to establish deliberate indifference).
The district court properly dismissed Cleveland’s deliberate indifference
claims against defendants Lois and Jones because Cleveland failed to allege that he
was harmed by the delay in treatment. See Hallett v. Morgan, 296 F.3d 732, 746
(9th Cir. 2002) (prisoner alleging deliberate indifference based on delay in
treatment must show that delay led to further injury).
The district court dismissed Cleveland’s deliberate indifference and
retaliation claims against defendant Fitter for failure to state a claim. However,
Cleveland alleged that defendant Fitter intentionally discontinued plaintiff’s pain
medication because Cleveland had complained about Fitter’s colleagues to the
medical board. Liberally construed, these allegations “are sufficient to warrant
ordering [Fitter] to file an answer.” Wilhelm, 680 F.3d at 1116; see also Rhodes v.

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Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a First
Amendment retaliation claim in the prison context); Hunt v. Dental Dep’t, 865
F.2d 198, 201 (9th Cir. 1989) (concluding that defendant acted with deliberate
indifference where his purposeful act caused the prisoner to suffer unnecessary and
wanton infliction of pain). We reverse and remand for further proceedings on
these claims against Fitter only.
AFFIRMED in part, REVERSED in part, and REMANDED.

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