                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 02 2011

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




                             FOR THE NINTH CIRCUIT



RICKEY A. BEAVER,                                No. 10-35583

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05132-BHS

  v.
                                                 MEMORANDUM *
WESTERN STATE HOSPITAL; DR.
DEEM,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Rickey A. Beaver, a civil detainee at Western State Hospital, appeals pro se

from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

that defendants denied him adequate medical care. We have jurisdiction under 28


          *
             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).
U.S.C. § 1291. We review de novo. Cholla Ready Mix, Inc. v. Civish, 382 F.3d

969, 973 (9th Cir. 2004). We affirm in part, reverse in part, and remand.

          The district court properly dismissed Beaver’s claims for monetary damages

against Western State Hospital and Dr. Deem in her official capacity on the basis

of Eleventh Amendment immunity. See Franceschi v. Schwartz, 57 F.3d 828, 831

(9th Cir. 1995) (per curiam) (Eleventh Amendment bars suits in federal court for

damages against a state or an arm of the state); see also Holley v. Cal. Dep’t of

Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (for sovereign immunity purposes, suits

against state officials in their official capacities are treated as suits against the

state).

          However, dismissal of the claim against Dr. Deem in her individual capacity

on the basis of qualified immunity was improper at this early stage of the

proceedings because Beaver’s allegations that Dr. Deem knowingly prescribed him

medication to which he was allergic and thereafter knowingly failed for several

weeks to prescribe pain medication for his chronic pain were sufficient to allege a

violation of a clearly established constitutional right. See Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009); Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (defendant

professional violates involuntarily committed plaintiff’s constitutional rights when


                                             2                                      10-35583
rendering decisions with respect to plaintiff’s treatment that are “a substantial

departure from accepted professional judgment, practice, or standards”); see also

Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“In reviewing a

motion to dismiss we presume that the facts alleged in the complaint are true.”

(citation and internal quotation marks omitted)). Accordingly, we reverse the

judgment as to this claim, and remand for further proceedings.

      The district court did not abuse its discretion by denying Beaver’s motion

for appointment of counsel because Beaver failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

      Beaver’s remaining contentions are unpersuasive.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           3                                    10-35583
