                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 1 2014

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



                             FOR THE NINTH CIRCUIT


WAYNE PICKERING,                                 No. 13-16138

               Plaintiff - Appellant,            D.C. No. 1:11-cv-00937-LJO-DLB

  v.
                                                 MEMORANDUM*
KEN CLARK, Warden at SATF; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted July 22, 2014**

Before:        GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

       Wayne Pickering, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs and violations of his First Amendment

rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

          *
             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).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.

§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)

(dismissal under 28 U.S.C. § 1915(e)(2)). We affirm in part, reverse in part, and

remand.

      The district court properly dismissed Pickering’s First Amendment

retaliation claim because Pickering failed to allege facts showing that prison

officials took adverse action against him because he filed grievances. See

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth the elements

of a retaliation claim in the prison context).

      The district court properly dismissed Pickering’s claim alleging that

defendants violated his constitutional rights in the processing and handling of his

prison grievances because prisoners do not have a “constitutional entitlement to a

specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th

Cir. 2003).

      The district court properly dismissed Pickering’s Eighth Amendment claims

against defendants Green, Salmi, Lee, Rotman, Byers, Lewis, Clark, Metts, Liu,

and Pierre because Pickering failed to allege facts showing that these defendants

were deliberately indifferent to Pickering’s serious medical needs. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately indifferent


                                            2                                    13-16138
only if he or she “knows of and disregards” an excessive risk to inmate health or

safety); Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (neither a

difference of opinion concerning the course of treatment nor mere negligence in

diagnosing or treating a medical condition amounts to deliberate indifference); see

also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (discussing the

requirements for establishing supervisory liability).

      However, dismissal of Pickering’s Eighth Amendment claim against

defendant Enenmoh was premature at this early stage of the proceedings.

Pickering alleged that although Enenmoh knew of Pickering’s pain, Enenmoh

changed Pickering’s physician requests from urgent to routine and from a total

knee replacement surgery to a consultation with an orthopedic surgeon. These

allegations, liberally construed, were “sufficient to warrant ordering [Enenmoh] to

file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); id. at

1123 (doctor’s awareness of need for treatment followed by unnecessary delay in

implementing the prescribed treatment sufficient to plead deliberate indifference).

Accordingly, we reverse the district court’s judgment as to the Eighth Amendment

claim against defendant Enenmoh, and remand for further proceedings.

      We do not consider Pickering’s contentions regarding the original complaint

and the first amended complaint because what is before us is the dismissal of the


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second amended complaint.

     AFFIRMED in part, REVERSED in part, and REMANDED.




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