                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 21 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



LEONARD FARLEY,                                  No. 09-15695

               Plaintiff - Appellant,            D.C. No. 1:06-cv-01760-LJO-
                                                 WMW
  v.

DOCTOR E. CAPOT, et al.,                         MEMORANDUM *

               Defendants - Appellees.



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

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Leonard Farley, a California prisoner, appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to



          *
             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).
serious medical needs in violation of the Eighth Amendment. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo, Nelson v. Heiss, 271 F.3d 891, 893

(9th Cir. 2001), and we affirm in part, reverse in part, and remand.

      The district court properly dismissed Farley’s deliberate indifference claim

against Dr. Capot because Farley failed to allege that Capot knew of or disregarded

a serious risk to Farley’s health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)

(setting forth deliberate indifference standard); see also Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006) (isolated instances of negligent failure to provide

medical care do not rise to the level of deliberate indifference). The record shows

that despite his initial failure to diagnose the source of Farley’s abdominal pain,

Capot subsequently responded reasonably to Farley’s medical needs.

      However, the district court erred in dismissing Farley’s deliberate

indifference claim against Dr. Tate. At the pleading stage, the allegations in

Farley’s complaint must be taken as true and construed in the light most favorable

to him. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Farley alleged

facts indicating that Tate refused to authorize two urgent requests for surgery on

Farley’s cancerous tumor without any explanation and that the approximately two-

month delay in surgery caused Farley unnecessary pain and further serious harm.

See Jett, 439 F.3d at 1097-98 (two-month delay in receiving treatment for fractured


                                           2                                     09-15695
thumb and nineteen-month delay in being seen by a hand specialist which caused

pain and diminished use of hand is sufficient to state deliberate indifference claim).

Contrary to the district court’s finding, Farley’s allegation that his tumor was

malignant was not contradicted by the record.

      We deny Farley’s motion for appointment of counsel because he fails to

establish exceptional circumstances for such appointment. See Wilborn v.

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

      The parties will bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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