                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 07 2010

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




                             FOR THE NINTH CIRCUIT



NEIL GRENNING,                                    No. 08-35292

               Plaintiff - Appellant,             D.C. No. 3:06-cv-05298-RJB

  v.
                                                  MEMORANDUM *
EILEEN W. BISSON; et al.,

               Defendants - Appellees.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Neil Grenning, a former pretrial detainee at the Pierce County Department of

Corrections Center, appeals pro se from the district court’s summary judgment in

his 42 U.S.C. § 1983 action alleging unconstitutional conditions of confinement,

deliberate indifference, and retaliation for his complaints to jail officials. We have

          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Forest Guardians v. U.S.

Forest Serv., 329 F.3d 1089, 1096 (9th Cir. 2003), and may affirm on any ground

supported by the record, id. at 1097. We affirm in part, reverse in part, and

remand.

      The district court properly granted summary judgment on Grenning’s dental

claim because he failed to raise a triable issue as to whether defendants were

deliberately indifferent to his medical needs. See Jett v. Penner, 439 F.3d 1091,

1096 (9th Cir. 2006) (an inmate must show both a serious medical need and that

defendant’s response was deliberately indifferent); Toguchi v. Chung, 391 F.3d

1051, 1057-58 (9th Cir. 2004) (mere negligence in diagnosing or treating a

prisoner’s medical condition does not constitute deliberate indifference); see also

Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986) (same standard applies to

pretrial detainees).

      The district court properly dismissed Grenning’s constant illumination claim

because he failed to exhaust grievance procedures prior to commencing his action.

See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (explaining that “proper

exhaustion” requires adherence to administrative procedural rules).

      We reverse summary judgment on Grenning’s retaliation claim against

defendant Pero because, viewing the facts in the light most favorable to Grenning,


                                          2                                      08-35292
a reasonable jury could conclude that he was retaliated against for exercising his

constitutional rights and that the retaliatory action did not advance legitimate

penological goals. See Rhodes v. Robinson, 408 F.3d 559, 568 n.11 (9th Cir. 2005)

(“[H]arm that is more than minimal will almost always have a chilling effect.”);

Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“[T]iming can properly be

considered as circumstantial evidence of retaliatory intent.”).

      The district court properly granted summary judgment on the retaliation

claim against defendant Ferko because he was not a participant in the complained

of retaliatory actions and Grenning concedes as much in his opposition to summary

judgment.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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