                                                                             FILED
                           NOT FOR PUBLICATION
                                                                              JAN 13 2016

                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JAMES ARTHUR ROSS,                                No. 13-35597

               Plaintiff - Appellant,             D.C. No. 3:09-cv-01530-HU

 v.                                               MEMORANDUM*
FRANK R. HORTON; et al.,

               Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                           Submitted December 23, 2015**


Before:        CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      The district court had jurisdiction to correct a clerical error in its judgment.

Morris v. Morgan Stanley & Co., 942 F.2d 648, 654–55 (9th Cir. 1991). The

district court’s order was intended to be final, but was entered “without prejudice”

in error. Even though Ross’s notice of appeal was premature as to the final


          *
             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).
judgment, the notice was validated when the district court amended its order

dismissing Ross’s claims with prejudice. See Cato v. Fresno City, 220 F.3d 1073,

1074–75 (9th Cir. 2000).

      Claim one, deliberate indifference, was correctly dismissed. "We may

affirm the decision of the district court on any basis which the record supports."

Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995) (affirming dismissal of the

complaint because the district court lacked subject matter jurisdiction). On the

merits, Ross did not allege that Dr. Gullick was deliberately indifferent to his pain;

he alleged that Dr. Gullick incorrectly concluded that he was not in pain. Even if

Ross had shown that Dr. Gullick misdiagnosed his condition, that does not

establish deliberate indifference. See Snow v. McDaniel, 681 F.3d 978, 987–88 (9th

Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th

Cir. 2014) (en banc).

      As to three of the five defendants, claim two, retaliation, was properly

dismissed. Ross has not presented any evidence to support his claims that Dr.

Gullick, Smith, or Gillum ordered him to be moved out of privileged housing. As

to defendants Horton and Bennett, claim two was improperly dismissed. Ross

presented evidence to support his allegations that: (1) Bennett stated the problem

was that Ross was a complainer; (2) Ross reported actual threats to Horton and


                                           2
Bennett and asked for help; (3) rather than respond to the threats, Horton and

Bennett ordered Ross to cell in with the inmate who threatened him. If proven,

these allegations would support a colorable retaliation claim.

      Claim three, failure to protect, was correctly dismissed. Ross did not allege

that he suffered a cognizable injury as a result of the order that he “cell in” with an

alleged gang member.

      To the extent Ross alleged a claim for equal protection, it was correctly

dismissed because Ross did not allege that other similarly situated inmates were

provided medical care that he was denied.

      It is unclear whether Ross intended to appeal the dismissal of his due process

claim. If he did, it was properly dismissed. Ross did not allege that his

confinement represented an atypical, significant deprivation from that in the

general prison population. See Sandin v.Conner, 515 U.S. 472, 486 (1995).

      The district court did not abuse its discretion when it denied Ross’s motion

to compel. Production of the requested blueprints posed a legitimate security

threat to the prison, and defendants provided an adequate response to Ross’s need

for information about the prison’s HVAC system.

      Construed as a motion to strike, Ross’s request that we reject appellees’

answering brief is denied. Ross was not prejudiced by the one-day delay in filing


                                           3
the brief.

       Affirmed in part, Reversed in part, and Remanded, with the parties to

bear their own costs.




                                       4
                                                                            FILED
Ross v. Horton, 13-35597
                                                                             JAN 13 2016
N.R. Smith, Circuit Judge, concurring in part and dissenting in part:    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


       The majority almost got it right, but it bent over backwards too far in trying

to preserve Ross’s retaliation claim against Horton and Bennett. I would affirm the

district court’s dismissal in all regards.

       Ross alleges that (1) the defendants removed him from his privileged

housing (2) because (3) Ross filed grievances against medical staff, and that such

action (4) caused Ross to be moved out of Complex 1 and placed in a threatening

situation, which ultimately resulted in him being placed in disciplinary segregation

and losing privileges, and (5) for no reason other than to retaliate. See Rhodes v.

Robinson, 408 F.3d 559, 567–68 (9th Cir. 2004). The defendants produced

affidavits and evidence to show that Horton and Bennett were unaware of Ross’s

grievances against medical. The defendants also produced evidence that Horton

understood Ross was “removed from honor housing due to several complaints

regarding the HVAC system and that it was affecting his sinuses.” Ross has

presented nothing to contradict this evidence.

       Ross claims only that (1) when he went to visit Horton in Complex 3,

Horton was “already aware” Ross had been transferred, and (2) Bennett told Ross

he had been moved for complaining. Even if true, these allegations show only that

                                             -1-
Horton and Bennett knew Ross had been transferred out of Complex 1 into

Complex 3 and that Horton and Bennett understood Ross had been moved for

complaining about the HVAC system. Ross has presented no evidence to support

his retaliation claim that Horton and Bennett transferred him out of Complex 1

because he filed grievances against the medical staff.

      The majority disregards Ross’s retaliation claim about the transfer and

instead construes Ross’s claim 3 (failure to protect) as a retaliation claim. It then

determines that—because Ross claims (1) Bennett called him a complainer, (2)

Ross reported perceived threats to Horton and Bennett, and (3) Horton and Bennett

ordered Ross to cell-in despite the threats—Ross has presented a “colorable

retaliation claim.” However, Ross never asserts that Horton and Bennett retaliated

against him by ordering him to cell-in with an inmate who allegedly threatened

him. Even if Ross had made those assertions, the claim would have been properly

dismissed, because Ross presented no evidence to suggest Horton or Bennett knew

about Ross’s complaints against the medical staff. Although we must interpret pro

se complaints liberally, we may not manufacture claims never alleged by Ross and

support them with hypotheses rather than evidence.




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