                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 06 2014

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



                            FOR THE NINTH CIRCUIT


KELVIN X. SINGLETON,                             No. 12-16036

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00095-AWI-
                                                 GSA
  v.

S. LOPEZ, Chief Medical Officer; A.              MEMORANDUM*
YOUSSEF, Physician; M. ALI, Senior
Registered Nurse; M. WRIGHT-
PEARSON, SRN III; S. QAMAR, Dr.;
VASQUEZ, Dr.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                        Argued and Submitted May 13, 2014
                             San Francisco, California

Before: RIPPLE,** SILVERMAN, and GOULD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
      Kelvin Singleton appeals from the district court’s grant of summary

judgment to Defendants rejecting his suit that alleged deliberate indifference to his

serious medical needs in violation of the Eighth Amendment under 42 U.S.C. §

1983. We have jurisdiction under 28 U.S.C. § 1292. We review a district court’s

grant of summary judgment de novo. Lemire v. Cal. Dep't of Corr. & Rehab., 726

F.3d 1062, 1074 (9th Cir. 2013). We affirm in part and reverse in part the grant of

summary judgment.

                                           I

      Singleton claims that officials at Kern Valley State Prison were deliberately

indifferent to two separate medical conditions during his confinement there from

2006 to 2008. First, he argues that prison officials were deliberately indifferent to

his back pain based on (A) their refusal to grant certain accommodations to prison

policies and (B) the substantial delay he faced in receiving effective pain treatment.

On the first issue, the prison officials testified that the accommodations requested

by Singleton – an extra mattress, a lower bunk, and permission not to lie prone

during drills – were not medically necessary and could exacerbate Singleton’s

condition. Although officials at another California state prison had granted some

of these accommodations, a difference of opinion on medical treatment is not

enough to establish deliberate indifference so long as the care provided was


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medically acceptable. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). We

therefore affirm the district court’s grant of summary judgment with respect to this

part of the claim. However, no reasonable justification was offered for the delay

Singleton faced in receiving effective treatment for his back pain. See McGuckin v.

Smith 954 F.2d 1050, 1059 (9th Cir. 1991) (holding that claims of delayed medical

treatment can support deliberate indifference suits). Although some treatment was

given, an inadequate response can support a deliberate indifference claim. Jett v.

Penner, 439 F.3d 1091 (9th Cir. 2006). We reverse the district court’s grant of

summary judgment on this part of Singleton’s first claim.

      Second, he argues that the prison officials were deliberately indifferent to

the serious medical need presented by his eye pain and swelling. Singleton first

had made Defendants aware of his eye pain in the summer and fall of 2006, and

requested to see an ophthalmologist. When his request was not granted by the

spring of 2007, Singleton filed an emergency appeal. A nurse told Singleton that

he would get an appointment with an ophthalmologist if he withdrew his appeal.

He did so, but he never received an appointment. When Singleton saw a vision

specialist in the fall of 2007, the specialist confirmed that Singleton had suffered

vision loss. Based on these allegations, Singleton has stated a claim for deliberate

indifference. This is not a case merely of differing medical opinions, but rather, a


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case where Singleton has alleged that the prison officials completely ignored

evidence of his serious medical need. Even if Singleton is unable to show that his

vision loss was caused by the prison official’s failure to timely grant his request for

an ophthalmologist, the continued pain and suffering caused by the eye swelling

could support a suit for deliberate indifference.

                                           II

      Singleton also appeals three pre-trial orders, each of which we review for

abuse of discretion. Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 1009 (9th

Cir. 2007) (evidentiary rulings); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

1997) (appointment of counsel).

      First, he argues that the magistrate judge abused his discretion in refusing to

admit new evidence, a 2011 prison report in which an ophthalmologist stated that

Singleton had “possibly” suffered a stroke. It is not controlling at the summary

judgment phase that the evidence was hearsay, so long as the evidence could be

presented in an admissible form at trial. Fed. R. Civ. P. 56(c)(2); Fraser v.

Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). However, it was not an abuse of

discretion for the magistrate judge to conclude that the statements were not

relevant to Singleton’s claims, given their timing and the lack of certainty in the

doctor’s statements.


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      Second, Singleton argues that the magistrate judge erred in denying

Singleton’s repeated requests for counsel. In cases under 28 U.S.C. § 1915(e)(1),

counsel will be appointed only in “exceptional circumstances,” which requires

consideration of “both the likelihood of success on the merits [and] the ability of

the [plaintiff] to articulate his claims pro se in light of the complexity of the legal

issues involved.” Rand, 113 F.3d at 1525. The magistrate judge reasonably

determined that although Singleton had made serious claims, Singleton was

capable of presenting them to the court without an attorney. That decision was

logical, plausible, and supported by the record, and thus not an abuse of discretion.

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

      Finally, Singleton argues that the magistrate judge erred by refusing to

consider Singleton’s request for a court-appointed expert. The magistrate judge

correctly stated that the in forma pauperis statute does not authorize the

appointment of a court-funded expert. However, the magistrate applied the wrong

legal standard, a per se abuse of discretion, Hinkson, 585 F.3d at 1262, when it did

not consider whether to appoint an expert with costs to be shared by the parties.

See McKinney v. Anderson, 924 F.2d 1500 (9th Cir. 1991), cert. granted, judgment

vacated sub nom. Helling v. McKinney, 502 U.S. 903 (1991) and judgment

reinstated, 959 F.2d 853 (9th Cir. 1992), aff'd sub nom. Helling v. McKinney, 509


                                           -5-
U.S. 25 (1993). We take no position on the outcome of this analysis, but remand

to the district court to consider in the first instance whether Federal Rule of

Evidence 706 supports the appointment of an expert in this case. See McKinney,

924 F.3d at 1510-11.

                                          III

      We affirm the district court’s grant of summary judgment with respect to the

denial of accommodations to Singleton’s back pain, but reverse the grant of

summary judgment with respect to the prison official’s delay in providing effective

treatment for that pain, and failure to respond to Singleton’s eye pain and swelling.

We affirm the magistrate judge’s denial of appointed counsel as well as the

exclusion of additional evidence, and remand for consideration of whether to

appoint an expert.

      AFFIRMED IN PART, REVERSED IN PART.

      Costs on appeal shall be taxed against Appellees. Fed. R. App. P. 39(d)(1).




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