                                                                           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                            NOT FOR PUBLICATION                             OCT 7 2014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


                                           2                                    13-36142
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).




                                          3                                    13-36142
The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.




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