                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL E. CHAVEZ,                               No. 11-16888

               Plaintiff - Appellant,            D.C. No. 1:09-cv-01080-OWW-
                                                 SKO
  v.

JAMES A. YATES, Warden; et al.,                  MEMORANDUM *

               Defendants - Appellees.



                    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




          *
             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).
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                                    11-16888
