                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 8 2011

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




                             FOR THE NINTH CIRCUIT



ALLAN KENNETH MORGAL,                            No. 09-17313

               Plaintiff - Appellant,            D.C. No. 2:07-cv-00670-MHM

  v.
                                                 MEMORANDUM *
MARICOPA COUNTY BOARD OF
SUPERVISORS; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN and FISHER, Circuit Judges.

       Allan Kenneth Morgal, an Arizona state prisoner, appeals pro se from the

district court’s summary judgment for defendants on his claim alleging deliberate



          *
             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).

                                                                                  09-17313
indifference to his serious medical needs because of a custom or policy of denying

adequate medical care at the Maricopa County Jail. We have jurisdiction under 28

U.S.C. § 1291. We review de novo summary judgment. Lovell v. Chandler, 303

F.3d 1039, 1052 (9th Cir. 2002). We review de novo a district court’s failure to

consider a nonmoving party’s pending motion requesting discovery to oppose

summary judgment. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162,

1178 (9th Cir. 2006). We affirm in part, vacate in part, and remand.

      The district court properly granted summary judgment for Arpaio and Tate

because Morgal failed to present evidence creating a genuine dispute of material

fact as to whether either defendant was causally linked to his injuries. See Leer v.

Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

      When the district court granted summary judgment for the Maricopa County

Board of Supervisors (“Supervisors”), however, Morgal had under submission five

requests that the district court order the Supervisors to produce a specified official

report purporting to identify specific systemic problems with healthcare services at




                                           2                                     09-17313
the Maricopa County Jail.1 The district court never ruled on these submissions but

granted summary judgment on the ground that Morgal had presented no evidence

of a pervasive County policy of denying adequate medical care. Pending discovery

motions by a party opposing summary judgment must be resolved before summary

judgment is granted so long as the nonmoving party has diligently pursued

discovery and the evidence sought could create a triable dispute. See Clark, 460

F.3d at 1178-79 (reversing summary judgment granted while nonmoving parties’

discovery motion was pending; “In such circumstances, the district court was

required to determine the merits of the [nonmoving parties’] pending discovery

motion before ruling on the summary judgment motions.”); see also Garrett v. City

& Cnty. of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987) (same).

Accordingly, we vacate and remand for further proceedings, including, if

applicable, resolution of any discovery request by either party relating to the

NCCHC report.



      1
        On appeal, Morgal has submitted a copy of a document dated February 24,
2006 entitled “Revised Accreditation Report on the Health Care Services at
Maricopa County Sheriffs Office-Detention Bureau” and naming the National
Commission on Correctional Health Care as the author. We supplement the record
to include this document only for the limited purpose of identifying it as the
subject of Morgal’s discovery submissions to the district court, i.e., “the NCCHC
report.” See Fed. R. App. P. 10(e)(2) (permitting the court of appeals to correct or
modify the record).

                                           3                                      09-17313
We deny the request in Morgal’s reply brief for appointment of counsel.

Appellees shall bear the costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.




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