                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 26 2015

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



                            FOR THE NINTH CIRCUIT


LINNIE STAGGS, as administrator of the           No. 13-16086
Estate of Robert E. Staggs, deceased, and
MELISSA STAGGS,                                  D.C. No. 2:11-cv-00414-MCE-
                                                 KJN
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

DOCTOR’S HOSPITAL OF MANTECA,
INC., et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                        Argued and Submitted June 9, 2015
                            San Francisco, California

Before: CHRISTEN and WATFORD, Circuit Judges, and RAKOFF,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jed S. Rakoff, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
                                                                             Page 2 of 3
      Plaintiffs have alleged sufficient facts to state a claim that the prison

defendants were deliberately indifferent to Robert Staggs’ medical needs.

      The parties agree that Staggs had serious medical needs in the form of

Hepatitis C, cirrhosis of the liver, and complications from undiagnosed liver

cancer, among other ailments. The only issue is whether defendants, despite their

awareness of Staggs’ needs, were deliberately indifferent either in denying medical

care or in providing medically unacceptable care. Plaintiffs have alleged that

prison doctors continued to recommend and eventually arranged a three-pass core

liver biopsy even after two hospitals refused to perform the procedure under any

circumstances because of an elevated risk of internal bleeding. That fact, accepted

as true, plausibly suggests that the decision to order the biopsy was “medically

unacceptable under the circumstances,” Jackson v. McIntosh, 90 F.3d 330, 332 (9th

Cir. 1996), rather than reflecting a mere “difference of medical opinion.” Sanchez

v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). This allegation adequately supports

plaintiffs’ claim that the prison doctors consciously disregarded a substantial risk

of serious harm to Staggs. See Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir.

2004). We therefore conclude that the district court erred in dismissing at the

pleading stage plaintiffs’ first claim for relief under 42 U.S.C. § 1983. (The court

properly dismissed plaintiffs’ fifth claim for relief, a ruling plaintiffs did not
                                                                               Page 3 of 3
challenge in their opening brief. Thus, they waived this argument. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).)

       The district court declined to exercise supplemental jurisdiction over

plaintiffs’ state law claims after dismissing plaintiffs’ federal claims. Given our

reversal of the dismissal of plaintiffs’ first claim for relief, we reinstate plaintiffs’

state law claims and leave it to the district court to decide whether to exercise

supplemental jurisdiction over these claims.

       REVERSED and REMANDED.
