                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 27 2012

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



                            FOR THE NINTH CIRCUIT


DAVID CODELL PRIDE, Jr.,                         No. 10-56036

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01382-BEN-
                                                 JMA
  v.

M. CORREA; LEVIN, Dr.; T. OCHOA,                 MEMORANDUM*
Warden; SANTIAGO, Dr.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted December 6, 2012
                              Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

       Plaintiff-Appellant David Pride, a California prisoner, appeals from the

district court’s: (1) grant of Defendants-Appellees’ motion for summary judgment;

(2) denial of Pride’s motion for a continuance to conduct discovery; and (3) grant




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of Defendants-Appellees’ motion to dismiss Pride’s claim for injunctive relief. We

have jurisdiction pursuant to 28 U.S.C. § 1291.

      We hold that the district court erred by granting summary judgment in favor

of Defendants-Appellees Dr. Levin and Nurse Correa. We affirm the district

court’s grant of summary judgment in favor of Defendants-Appellees Dr. Santiago

and Warden Ochoa. We find that the district court erred by denying Pride’s

motion to continue the hearing on Defendants-Appellees’ motion for summary

judgment pending further discovery. Finally, we hold that the district court erred

by granting Defendants-Appellees’ motion to dismiss Pride’s claim for injunctive

relief. We remand for further proceedings consistent with this disposition.

I.    Defendants-Appellees’ Motion for Summary Judgment

      A.    Dr. Levin and Nurse Correa

      We review a grant of summary judgment de novo. Citicorp Real Estate, Inc.

v. Smith, 155 F.3d 1097, 1103 (9th Cir. 1998). In light of Pride’s medical records

showing chronic and substantial pain resulting from a permanent shoulder injury

from a gunshot wound and a knee injury, Pride has established a genuine issue of

material fact on whether he has a serious medical need. Clement v. Gomez, 298

F.3d 898, 904 (9th Cir. 2002). Genuine issues of material fact also exist on




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whether Dr. Levin and Nurse Correa were deliberately indifferent to Pride’s

medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).

      There is no evidence in the record showing that the Chrono Committee’s

denial of Dr. Santiago’s requests for Pride was based on medical reasons. The

record also does not identify the names of the doctors who were on the Chrono

Committee, who purportedly denied Dr. Santiago’s requests. Viewing the

evidence in a light most favorable to Pride raises an inference that the Chrono

Committee’s decision was an inferior medical opinion compared to Dr. Santiago’s.

See e.g., Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012) (concluding triable issue

existed on deliberate indifference where a panel of doctors repeatedly denied the

recommendation made by plaintiff’s treating doctor and two orthopedic surgeons

that plaintiff undergo surgery); Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992)

(holding defendants may have acted with deliberate indifference by choosing to

rely on a doctor’s “inferior” medical opinion, which was based solely on standard

medical protocol, instead of plaintiff’s treating physician and surgeon).

      Moreover, it is undisputed that Nurse Correa was unqualified to be on the

Chrono Committee. But Dr. Levin sent Nurse Correa to the Chrono Committee as

his representative and Nurse Correa signed the denial on Dr. Levin’s behalf. See

Toussaint v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986) (reversing


                                         -3-
summary judgment for defendants because if registered nurses provided “a number

of [medical] services which they [were] not qualified to perform,” this would

demonstrate deliberate indifference), abrogated in part on other grounds by Sandin

v. Conner, 515 U.S. 472 (1995).

      Accordingly, triable issues of material fact exist on the question of deliberate

indifference: (1) whether the Chrono Committee’s decision was an inferior medical

opinion when compared to Dr. Santiago’s opinion; (2) whether Dr. Levin and

Nurse Correa acted with deliberate indifference in denying Pride’s Second Level

Review given the lack of medical reasons for the Chrono Committee’s decision;

and (3) whether Dr. Levin and Nurse Correa acted with deliberate indifference

when Nurse Correa attended the Chrono Committee for Dr. Levin.1

      B.    Dr. Santiago

      The district court properly granted summary judgment in favor of Dr.

Santiago. At most, Dr. Santiago’s conduct amounts to negligence, not deliberate

indifference. Wood v. Housewright, 900 F.2d 1332, 1334-35 (9th Cir. 1990) (gross




      1
        The government’s argument that Pride never followed up with treating
physicians is unpersuasive. Pride claims that he saw his doctor and spoke about
his appeal. He also went to additional doctors who issued the same chronos as Dr.
Santiago. Thus, whether Pride followed through with instruction to see treating
physicians is also a triable issue of material fact.

                                         -4-
negligence and mere medical malpractice do not constitute deliberate indifference).

      C.     Warden Ochoa

      The district court also properly granted summary judgment in favor of

Warden Ochoa. Ochoa was neither personally involved with the alleged

constitutional violation nor was his policy sufficiently casually connected to the

violation. See Redman v. County of San Diego, 942 F.2d 1435, 1454-55 (9th Cir.

1991) (holding for a supervisor to be individually liable he must be personally

involved in the constitutional deprivation, or his policy must be sufficiently

casually connected to the constitutional violation).

II.   Pride’s Motion for Continuance to Conduct Discovery

      We review for abuse of discretion the district court’s denial of a motion to

continue a summary judgment hearing pending further discovery. Michelman v.

Lincoln Nat. Life Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012). The district court

abused its discretion by requiring the discovery sought by Pride under Rule 56(d)

to be obtained from Defendants, rather than from a third-party. See Koon v. United

States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion

when it makes an error of law.”).

      Moreover, Pride demonstrated that the additional discovery would have

precluded summary judgment, thus, the district court’s denial of Pride’s motion


                                         -5-
was an abuse of discretion. See VISA Int’l Serv. Ass’n v. Bankcard Holders of Am.,

784 F.2d 1472, 1475 (9th Cir. 1986) (stating denial is disfavored when plaintiff

specifically identifies relevant information and points to “some basis” for its

existence). Specifically, Pride’s requested information from Nurse Garcia on his

appointments with doctors would have disproved Defendants-Appellees’ claim that

Pride did not go back to his doctors as instructed. Pride’s requested information

regarding attempts by Defendants-Appellees to fabricate documentation during

Pride’s appeal would have demonstrated personal animosity, which bears on the

issue of deliberate indifference. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th

Cir. 1996) (holding “personal animosity” may establish deliberate indifference). In

his motion, Pride substantiated that Garcia would have the requested discovery

because she interviewed Pride on issues raised in his inmate appeal, was involved

in the grievance process, and filled out one of the appeal forms.

      Thus, on remand, Pride must be allowed additional discovery.2




      2
         Pride did not seek discovery relating to Dr. Santiago. Although Pride
sought information from Garcia on Ochoa’s prison mattress policy, that discovery
would not have precluded summary judgment. Thus, summary judgment for Dr.
Santiago and Warden Ochoa is not subject to reversal because of the district
court’s erroneous ruling on Pride’s motion for a continuance.

                                         -6-
III.   Defendants-Appellees’ Motion to Dismiss

       The district court’s dismissal of Pride’s injunctive relief claim is properly

before us. See, e.g., Meehan v. County of Los Angeles, 856 F.2d 102, 105-06 (9th

Cir. 1988) (holding that when an issue is not designated in the notice of appeal, the

issue is properly before the court when both parties fully brief the issue).

       The district court’s grant of a motion to dismiss for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) is reviewed de novo. Vestron, Inc. v. Home

Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir. 1988).

       The district court dismissed Pride’s injunctive relief claim on the ground that

the relief Pride sought was already provided for in the pending class action Plata v.

Schwarzenegger, No. 01-1351, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005). The

Plata stipulation states that California prison officials may “assert issue preclusion

and res judicata in other litigation seeking class or systemic relief.”

       The dismissal of an individual complaint is proper when the plaintiff “is a

member in a class action seeking the same relief.” Crawford v. Bell, 599 F.2d 890,

892 (9th Cir. 1979). Here, however, Pride seeks an injunction preventing

Defendants from denying him his medical treatment and accommodations. Unlike

Plata, he does not seek systemic relief. Thus, the district court erred by dismissing

Pride’s claim for injunctive relief. See id. at 893 (holding the district court


                                          -7-
correctly dismissed only those portions of plaintiff’s complaint “which duplicate

the . . . allegations and prayer for relief” in a pending class action in which plaintiff

is a member); Tillis v. Lamarque, No. C 04-3763 SI, 2006 WL 644876 (N.D. Cal.

Mar. 9, 2006) (holding Plata does not bar plaintiff’s claim for injunctive relief

because plaintiff “seek[s] relief solely on his own behalf”); Burnett v. Dugan, 618

F. Supp. 2d 1232, 1235-37 (S.D. Cal. 2009).

      Pride’s claim for injunctive relief is moot as to Dr. Santiago and Warden

Ochoa because summary judgment was properly granted in their favor. On

remand, the district court should address whether Dr. Levin’s transfer mooted

Pride’s claim for injunctive relief against Dr. Levin.

IV.   Conclusion

      The district court’s order granting summary judgment for Defendants-

Appellees is REVERSED in part and AFFIRMED in part. The district court’s

order denying Pride’s motion for discovery is REVERSED; on remand, Pride must

be allowed additional discovery. The district court’s grant of Defendants-

Appellees’ motion to dismiss Pride’s claim for injunctive relief is REVERSED.

Pride shall recover his costs on appeal.




                                           -8-
