                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 20 2014

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

MARK A. VINZANT,                                 No. 12-55033

              Plaintiff - Appellant,             D.C. No. 5:07-cv-00024-VAP-
                                                 AJW
  v.

UNITED STATES OF AMERICA;                        MEMORANDUM*
JESUS FERNANDEZ, M.D., Dr.;
MESRA, Medical Director; LOUIS
STERLING, Assistant Medical Director;
ALLEN, Assistant Medical Director; S. A.
HOLINCEK, Deputy Warden,

              Defendants - Appellees,

  And

DEPARTMENT OF JUSTICE; BUREAU
OF PRISON VICTORVILLE,

              Defendants.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted August 12, 2014
                            San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

      Mark A. Vinzant, a former federal prisoner, appeals the district court’s

summary judgment in favor of the United States and individuals in Vinzant’s

action alleging claims for medical malpractice under the Federal Tort Claims Act

(“FTCA”) and deliberate indifference under the Eighth Amendment. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts and history of this case, we do not recount them here.

       On de novo review, the record supports the district court’s determination

that there was no triable issue of material fact demonstrating the defendants’

breach of the standard of care under the FTCA. Mansion v. United States, 945

F.2d 1115, 1116 (9th Cir. 1991). The district court did not abuse its discretion in

excluding Dr. Latch’s report pursuant to Federal Rule of Civil Procedure

26(a)(2)(B) given that Vinzant provided no evidence demonstrating that Dr. Latch

was exempt from the written report requirement. See Fed. R. Civ. P. 37(c)(1); Yeti

by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)

(explaining that Rule 37(c)(1) “forbid[s] the use at trial of any information required

to be disclosed by Rule 26(a) that is not properly disclosed.”). Vinzant’s failure to



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disclose Dr. Latch as an expert was not “substantially justified” or “harmless,”

Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir.

2011), and noncompliance was within his control, see Henry v. Gill Indus., Inc.,

983 F.2d 943, 948 (9th Cir. 1993).

      The district court erred in granting summary judgment on Vinzant’s Eighth

Amendment deliberate indifference claim with respect to the physical therapy

scheduling delay. Throughout the proceedings, Vinzant specifically argued that

the defendants unreasonably denied him physical therapy, an assertion that fairly

encompassed his allegation that the physical therapy, once prescribed, had been

unreasonably delayed. Consequently, Vinzant did not waive this claim. Because

Vinzant raised a genuine dispute of material fact regarding the cause and impact of

the physical therapy delay, we reverse the district court’s grant of summary

judgment and remand for further proceedings. See Hunt v. Dental Dep’t, 865 F.2d

198, 201 (9th Cir. 1989) (reversing and remanding based on determination that a

three-month delay in replacing dentures that were causing pain constituted a claim

of deliberate indifference).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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