                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 22 2010

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




                             FOR THE NINTH CIRCUIT



KURT JEFFREY ANGELONE,                           No. 09-35437

               Plaintiff - Appellant,            D.C. No. 3:07-cv-05538-RJB

  v.
                                                 MEMORANDUM *
MICHAEL FURST, Psychiatrist; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Kurt Jeffrey Angelone, a Washington state prisoner, appeals pro se from the

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

violations of his federal constitutional rights. We have jurisdiction under 28

          *
             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).
U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

Cir. 2004), and we affirm in part, vacate in part, and remand.

      The district court properly granted summary judgment on the Eighth

Amendment claims against defendants Figueroa, Wu, Amaru, Rossi, and Furst

because Angelone failed to raise a genuine issue of material fact as to whether their

treatment of his headaches and decisions regarding medications constituted

deliberate indifference. See id. at 1057-60 (a prison official acts with deliberate

indifference only if he knows of and disregards an excessive risk to inmate health,

and a difference of opinion concerning the appropriate course of treatment

generally does not amount to deliberate indifference).

      The district court properly granted summary judgment to defendant Furst on

Angelone’s privacy claims because Angelone failed to present any evidence

supporting his claim that Furst violated his constitutional or legal rights. See

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (nonmoving party must present

significant probative evidence supporting its claim that material, triable issues of

fact remain).

      However, the district court erred in dismissing Angelone’s claims against

Furst without addressing his claim of retaliation under the First Amendment. In

his verified complaint and opposition, Angelone alleged that Furst threatened to,


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and did, lie to Angelone’s medical provider about Angelone being a

benzodiazepines seeker, in retaliation for Angelone exercising his First

Amendment rights, thereby causing Angelone to be taken off Valium. Viewed in

the light most favorable to Angelone, this could raise a genuine issue of material

fact regarding Furst’s intent that Angelone be taken off Valium. See Bruce v. Ylst,

351 F.3d 1283, 1288-89 (9th Cir. 2003) (summary judgment not appropriate where

inmate raised a genuine issue as to whether the stated penological goal for the

allegedly retaliatory act was not legitimate). Accordingly, we remand for the

district court to consider this claim in the first instance.

       Angelone’s remaining contentions are unpersuasive.

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.




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