                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MANUEL LOZANO,                                  No. 15-56528

                Plaintiff-Appellant,            D.C. No. 5:13-cv-143-JVS-AGR

 v.
                                                MEMORANDUM *
PATRICIA KNUDSON, ET AL.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California,
                    James V. Selna, District Judge, Presiding

                       Argued and Submitted April 5, 2017
                              Pasadena, California

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

      California state prisoner Manuel Lozano appeals from the district court’s

order granting summary judgment in favor of Defendant jail officials and doctors

on his 42 U.S.C. § 1983 claim that Defendants were deliberately indifferent to his

serious medical needs in violation of his constitutional rights. We review the order


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
granting the motion for summary judgment de novo. Lemire v. Cal. Dep’t of Corr.

& Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We have jurisdiction pursuant to

28 U.S.C. § 1291. We vacate and remand.

      In the circumstances of this case, the district court erred in granting

summary judgment in favor of Defendants without considering Lozano’s causation

evidence. Throughout the litigation, Lozano, who was proceeding pro se, made

clear to the district court that a declaration from his treating ophthalmologist was

necessary to establish that Defendants’ deliberate indifference caused his vision

loss. Lozano asked the district court multiple times how to obtain a declaration,

but the court never provided an answer. He nonetheless filed his medical records

with the district court, including the notes of his treating ophthalmologist, which

the district court acknowledged and “lodged.”

      In the report and recommendation on the motion for summary judgment, the

magistrate judge did not consider the medical evidence filed with the court because

Lozano did not cite it in his memorandum. The magistrate judge informed Lozano

that in order to raise an issue of material fact as to causation, he needed to file and

cite to evidence such as his medical records. But because Lozano had already filed

all of his medical records with the court, he could have reasonably believed that

those records were insufficient and that it would have been fruitless to file them

again in conjunction with his opposition to the motion for summary judgment.


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      Lozano’s medical records, if considered, may well have enabled Lozano to

establish a genuine issue of material fact as to causation. The medical records

showed a six-month delay in Lozano’s glaucoma treatment and that he was first

diagnosed with partial blindness immediately after that delay. Lozano’s treating

ophthalmologist remarked in Lozano’s medical records that he was partially blind

and that her plan for Lozano’s glaucoma treatment was “not followed[] [a]t all.”

See Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1168 (9th

Cir. 2013) (“[P]laintiffs bear the burden of demonstrating that the defendant’s

conduct caused some harm suffered by the plaintiffs. . . . [But a plaintiff] doesn’t

have to offer evidence which positively excludes every other possible cause of the

[injury].” (emphasis added) (internal quotation marks and citation omitted)); see

also Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th Cir. 1989) (applying tort

causation factors in the civil rights context).

      Due to the case’s complexity and Lozano’s confusion on the procedural

requirements, we vacate and remand with the instruction that the district court

allow Lozano to cure technical deficiencies in his filings. Walters v. Young, 100

F.3d 1437, 1441 (9th Cir. 1996) (“[T]his court has long sought to ensure that pro se

litigants do not unwittingly fall victim to procedural requirements that they may,

with some assistance from the court, be able to satisfy.”). We strongly urge the

district court to appoint pro bono counsel to represent Lozano going forward if


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such counsel is available. If current pro bono counsel is able and willing to accept

the assignment (which, we realize, may not be practical), they should advise the

district court following issuance of the mandate by this court.

      VACATED and REMANDED.

      Costs are to be taxed against the defendants-appellees.




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