                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 01 2015

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



                             FOR THE NINTH CIRCUIT


JOSEPH L. MIZZONI,                               No. 13-16471

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00358-HDM-
                                                 WGC
  v.

STATE OF NEVADA; et al.,                         MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Howard D. McKibben, District Judge, Presiding

                             Submitted April 22, 2015**

Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

       Joseph L. Mizzoni, a Nevada state prisoner, appeals pro se from the district

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

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.



          *
             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).
§ 1291. We review de novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir.

2014). We vacate and remand.

      In granting summary judgment to defendants on Mizzoni’s claim that

Bannister was deliberately indifferent to his left eye cataract condition, the district

court did not have the benefit of our recent decision in Colwell, 763 F.3d at 1063

(concluding that “the blanket, categorical denial of medically indicated surgery

solely on the basis of an administrative policy that ‘one eye is good enough for

prison inmates’ is the paradigm of deliberate indifference.”). We vacate and

remand for the district court to consider in the first instance the application of

Colwell to Mizzoni’s Eighth Amendment claim against Bannister. Although not

raised by Mizzoni in his appeal, we suggest that on remand the district court

reconsider its decision whether to appoint counsel.

      Because Mizzoni states in his reply brief that he “does not argue and

recommends dismissal” of his claim against defendant Robertson, we do not

address that claim.

      Mizzoni’s pending requests for judicial notice are denied.

      Each party shall bear its own costs on appeal.

      VACATED and REMANDED.




                                            2                                     13-16471
