                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 18 2015
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KENNETH W. REED,                                  No. 13-17613

              Plaintiff - Appellee,               D.C. No. 2:11-cv-01339-JAT

 v.
                                                  MEMORANDUM*
KAREN BETH BARCKLAY, AKA
Karen Beth Barcklay-Dodson, AKA Karen
Beth Dodson,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                 James A. Teilborg, Senior District Judge, Presiding

                          Submitted December 10, 2015**
                             San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges and MOSKOWITZ,*** Chief
District Judge.



        *
             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).
        ***
              The Honorable Barry Ted Moskowitz, Chief District Judge for the
U.S. District Court for the Southern District of California, sitting by designation.
      Dr. Karen Barcklay appeals from the district court’s denial of her motion for

summary judgment based on qualified immunity in a 42 U.S.C. § 1983 action

brought by Arizona state prisoner Kenneth Reed alleging deliberate indifference to

his serious medical needs in violation of the Eighth Amendment. Specifically,

Reed alleges that Dr. Barcklay refused to provide effective medication for his

serious migraines. We review de novo a district court’s order denying summary

judgment on the ground of qualified immunity. Huskey v. City of San Jose, 204

F.3d 893, 899 (9th Cir. 2000). We affirm.

      As a preliminary matter, Reed contends that we lack appellate jurisdiction to

review this interlocutory appeal because Dr. Barcklay raises factual rather than

legal disputes. However, we have jurisdiction because “[w]here disputed facts

exist, . . . we can determine whether the denial of qualified immunity was

appropriate by assuming that the version of the material facts asserted by the

non-moving party is correct.” Bingue v. Prunchak, 512 F.3d 1169, 1172-73 (9th

Cir. 2008) (quoting Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per

curiam)).

      Dr. Barcklay argues that she is entitled to qualified immunity because she

did not violate Reed’s clearly established rights. However, viewing the facts in the

light most favorable to Reed, Dr. Barcklay deliberately chose not to provide

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effective medication that Reed had long been prescribed for serious migraines

despite the substantial risk of harm to Reed. It was clearly established that a

physician’s failure to provide treatment that would alleviate an inmate’s significant

pain could constitute deliberate indifference in violation of the Eighth Amendment.

See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (setting forth deliberate

indifference standard). We reject Dr. Barcklay’s attempt to frame the issue more

narrowly as whether it was clearly established that inmates have a right to non-

emergency medical care after they fail to follow prison policy to submit their

request in writing. See Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995) (rejecting

attempt to more narrowly define an inmate’s Eighth Amendment right to receive

medical care because to do so would allow defendants to “define away all potential

claims”). Moreover, viewing the facts in the light most favorable to Reed, he

complied with the prison policy to submit his request in writing, and it was not

reasonable to require him to continue submitting the same request when it became

clear that to do so would be futile.

      Alternatively, Dr. Barcklay argues that she is entitled to qualified immunity

because she could have mistakenly, but reasonably, perceived that she was not

exposing Reed to a substantial risk of serious harm by denying his request for

effective migraine medication. See Estate of Ford v. Ramirez-Palmer, 301 F.3d

                                          3
1043, 1050 (9th Cir. 2002) (government official is entitled to qualified immunity if

he or she “mistakenly, but reasonably, perceive[d] that the exposure in any given

situation was not that high”). However, viewing the facts in the light most

favorable to Reed, Dr. Barcklay did not make a reasonable mistake because, among

other things, Reed told her that he had suffered a number of painful migraine

attacks.

      AFFIRMED.




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