                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 22 2010

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




                             FOR THE NINTH CIRCUIT



ROBERT D. REESE, Sr.,                             No. 09-16231

               Plaintiff - Appellant,             D.C. No. 2:05-cv-02336-GEB-
                                                  KJM
  v.

TOM L. CAREY; et al.,                             MEMORANDUM *

               Defendants,

  and

A. TRAQUINA; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and THOMAS, Circuit Judges.




          *
             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).
      California state prisoner Robert D. Reese, Sr. appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging that the medical care he

received for a broken finger amounted to deliberate indifference. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo both the district court’s

summary judgment ruling, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en

banc), and the district court’s dismissal for failure to exhaust administrative

remedies, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010), and we affirm in

part, reverse in part, and remand.

      The district court properly granted summary judgment on the claims against

defendants Kofoed and Traquina because Reese failed to present evidence showing

that either defendant acted with deliberate indifference. See Simmons v. Navajo

County, 609 F.3d 1011, 1019 (9th Cir. 2010) (failure to make correct medical

decisions is not deliberate indifference); Clem v. Lomeli, 566 F.3d 1177, 1181 (9th

Cir. 2009) (defendants are deliberately indifferent only when they act or fail to act

with knowledge of a substantial risk of serious harm).

      The district court improperly dismissed Reese’s claim against defendant

Kanan on exhaustion grounds in light of our intervening case law. See Rhodes v.

Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010) (exhaustion requirement is satisfied

if the inmate exhausts administrative remedies on an issue before filing an


                                           2
amended complaint raising that issue). Therefore, we remand to allow the district

court to determine whether Reese’s grievance submitted in 2006 exhausted his

claim against Kanan.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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