                                                                          FILED
                   UNITED STATES COURT OF APPEALS                          JUL 16 2013

                                                                       MOLLY C. DWYER, CLERK
                           FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




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

             Plaintiff - Appellant,            D.C. No. 3:07-cv-01382-BEN-
                                               JMA
  v.                                           Southern District of California,
                                               San Diego
M. CORREA; LEVIN, Dr.; T. OCHOA,
Warden; SANTIAGO, Dr.,
                                               ORDER
             Defendants - Appellees.


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

       Pride’s request for publication is GRANTED. The memorandum disposition

filed on December 27, 2012, is withdrawn. A published opinion along with a new

memorandum disposition will be filed concurrently with this order.

       IT IS SO ORDERED.
                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 16 2013

                                                                           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 David Pride, a California prisoner, appeals from the district court’s:

(1) grant of defendants’ motion for summary judgment; and (2) denial of Pride’s




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion for a continuance to conduct discovery.1 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 Dr. Levin and Nurse Correa. We affirm the district court’s grant of

summary judgment in favor of defendants Dr. Santiago and Warden Ochoa. We

find that the district court erred by denying Pride’s motion to continue the hearing

on defendants’ motion for summary judgment pending further discovery. We

remand for further proceedings consistent with this disposition.

I.    Defendants’ 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

caused by a gunshot wound, and from 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




      1
         We address the district court’s grant of defendants’ motion to dismiss
Pride’s claim for injunctive relief in a concurrently-filed opinion.

                                         -2-
exist on 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 Chrono Committee doctors, who

purportedly denied Dr. Santiago’s requests. Viewing the evidence in a light most

favorable to Pride raises a reasonable inference that the Chrono Committee’s

decision constituted an inferior medical opinion when compared to Dr. Santiago’s

recommendation as Pride’s treating physician. See e.g., Snow v. McDaniel, 681

F.3d 978 (9th Cir. 2012) (concluding that a triable issue existed as to 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 that

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 on 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


                                          -3-
Toussaint v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986) (reversing

summary judgment in favor of 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 as to whether: (1) the

Chrono Committee’s decision was an inferior medical opinion when compared to

Dr. Santiago’s opinion; (2) 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) Dr. Levin and Nurse Correa

acted with deliberate indifference when Nurse Correa attended the Chrono

Committee for Dr. Levin.2

      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

      2
        Defendants’ argument that Pride never followed up with his treating
physician is unpersuasive. Pride claims that he saw his doctor and spoke about his
appeal. He also visited with additional doctors who issued the same chronos as Dr.
Santiago. Thus, whether Pride followed through with instruction to see his 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 causally connected to the

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

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

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

causally 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 that denial is disfavored when a

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

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

regarding his appointments with doctors would have disproved defendants’ claim

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

information regarding attempts by defendants 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 that “personal animosity” may establish deliberate

indifference). In his motion, Pride substantiated that Garcia would possess 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.3




         3
         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 in favor
of 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.   Conclusion

       The district court’s order granting summary judgment in favor of defendants

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. Pride shall recover his costs on appeal.




                                         -7-
