                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RAUL ARELLANO,                                  No. 18-55610

                Plaintiff-Appellant,            D.C. No. 3:14-cv-02401-MMA-
                                                JLB
 v.

E. OJEDA, Correctional Sergeant; et al.,        MEMORANDUM*

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                           Submitted January 15, 2019**

Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

      California state prisoner Raul Arellano appeals pro se from the district

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

Amendment violations arising from unsanitary conditions of confinement. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part, reverse in part, and

remand.

      The district court properly granted summary judgment on Arellano’s claim

against defendant Ojeda because Arellano failed to raise a genuine dispute of

material fact as to whether Ojeda was aware of and disregarded an excessive risk

to Arellano’s health or safety. See id. at 1057 (elements of a deliberate

indifference claim).

      However, summary judgment on the claims against defendants Mack and

Helmick was improper. In the verified second amended complaint, Arellano

alleged that the toilet in his solitary confinement cell clogged and overflowed for a

period of several days, and that he personally alerted defendants Mack and

Helmick to the sanitation issue and they failed to address it. In their declarations,

Mack and Helmick state that Arellano did not alert them to the sanitation issue.

On this record, there is a genuine dispute of material fact as to whether defendants

knew of the sanitation issue and acted with deliberate indifference in failing to

address it. See Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995)

(“[S]ubjection of a prisoner to lack of sanitation that is severe or prolonged can

constitute an infliction of pain within the meaning of the Eighth Amendment.”);

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see also Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015) (district

court cannot disregard evidence at the summary judgment stage solely based on its

self-serving nature, even if it is uncorroborated); Jones v. Blanas, 393 F.3d 918,

923 (9th Cir. 2004) (verified pleadings are admissible to oppose summary

judgment). We reverse the district court’s summary judgment for Mack and

Helmick, and remand for further proceedings.

       To the extent that Arellano requests appointment of counsel on remand, the

request is denied without prejudice to Arellano requesting appointment of counsel

by the district court.

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, REVERSED in part, and REMANDED.




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