                                                                             FILED
                                                                              MAR 25 2010
                             NOT FOR PUBLICATION
                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

                      UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



 ERIC PATRICK MARTIN,                              No. 08-15798

               Plaintiff - Appellant,              D.C. No. 1:04-cv-05358-LJO-GSA

   v.
                                                   MEMORANDUM *
 DAVE WINETT; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Eric Patrick Martin, a California state prisoner, appeals pro se from the

district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional

          *
             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).

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violations in connection with his placement and retention in administrative

segregation and the secured housing unit. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo the district court’s dismissal under 28 U.S.C.

§ 1915A, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and its summary

judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in

part, reverse in part, and remand.

        The district court properly granted summary judgment on Martin’s denial of

access to the courts claim because Martin failed to raise a genuine issue of material

fact as to whether defendants Aguirre and Huerta frustrated or impeded a non-

frivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996).

        The district court properly granted summary judgment for defendant Gracey

on Martin’s Eighth Amendment claim because Martin failed to raise a genuine

issue of material fact as to whether Gracey was aware of an excessive risk to

Martin’s health due to the lack of water in Martin’s cell. See Toguchi, 391 F.3d at

1057.

        However, the district court improperly dismissed Martin’s Eighth

Amendment claim against defendant Winett at the screening stage. Martin alleged

that he was deprived of adequate drinking water and sanitation during his

confinement in segregation which resulted in illness, and that he made Winett


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aware of his alleged hardship. Although the district court dismissed the claim, in

part, because Martin failed to allege facts sufficient to support a claim that the

conditions of his confinement were so extreme that they rose to the level of an

Eighth Amendment violation, the district court also concluded that the same facts

gave rise to a claim for relief against defendant Gracey. See Johnson v. Lewis, 217

F.3d 726, 735 (9th Cir. 2000) (lack of adequate drinking water and sanitation may

constitute substantial deprivations giving rise to Eighth Amendment violation). In

addition, Martin sufficiently alleged that Winett knew of and disregarded an

excessive risk to Martin’s health. See Toguchi, 391 F.3d at 1057. Accordingly, we

reverse and remand for further consideration of this claim.

       With respect to Martin’s due process claims against defendants Johnson,

Stainer, and Winett, Martin’s complaint, liberally construed, alleged that the

changes in his confinement caused a “major disruption in his environment.”

Jackson v. Carey, 353 F.3d 750, 756 (9th Cir. 2003). The district court erred in

dismissing these claims at the screening stage because, unlike the inmate facing

summary judgment in Sandin v. Connor, 515 U.S. 472 (1995), Martin need only

“sufficiently allege[] facts that might support a claim entitling him to relief.”

Jackson, 353 F.3d at 756. Accordingly, we reverse and remand for further

consideration of the claims.


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       Martin’s remaining contentions are unpersuasive.

       Martin’s motion to file a late reply brief and attached excerpts of record is

granted. The Clerk shall file the reply brief and attached excerpts of record

received on February 17, 2009.

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, REVERSED in part, and REMANDED.




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