                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           AUG 11 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


RANDEE R. VENSOR,                                No. 14-16408

               Plaintiff - Appellant,            D.C. No. 2:12-cv-01780-SPL-JFM

 v.
                                                 MEMORANDUM*
TONYA SCHELL; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                         Argued and Submitted July 8, 2016
                             San Francisco, California

Before:        SILVERMAN and NGUYEN, Circuit Judges and ANELLO,** District
Judge.

      Former Arizona prisoner Randee R. Vensor appeals the district court’s

summary judgment in favor of prison officials in Vensor’s 42 U.S.C. § 1983 action

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          ** The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
alleging deliberate indifference to his serious medical needs and conditions of

confinement. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056

(9th Cir. 2004). We affirm in part, vacate in part, and remand.

      The district court properly granted summary judgment to defendant Schell

because Vensor failed to raise a triable dispute of fact as to whether defendant

Schell was deliberately indifferent to his serious medical needs. See Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989) (liability under a § 1983 claim arises “only

upon a showing of personal participation by the defendant”) (citation omitted);

Mackie v. Rieser, 296 F.3d 909, 915-16 (9th Cir. 2002) (noting non-moving party

must set forth non-speculative evidence of specific facts to defeat summary

judgment); Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002) (where a

prisoner is alleging that delay of medical treatment evinces deliberate indifference,

the prisoner must show that the delay caused significant harm).

      The district court improperly granted summary judgment to defendants

Cervantes and Velasquez. The district court concluded that, despite the extreme

temperatures on August 30, 2011, two one-hour transports without air conditioning

did not rise to a sufficiently serious deprivation under the Eighth Amendment. The

district court also concluded that Vensor failed to show that Cervantes and


                                          2                                    14-16408
Velasquez were aware of or should have been aware of a substantial risk to

Vensor’s health and safety.

      When viewed in the light most favorable to Vensor, the evidence presented

on summary judgment creates a dispute of material fact as to whether the extreme

heat in the transport van, combined with Vensor’s medical instructions not to eat or

drink before the transport and lack of access to water and air conditioning in the

van, actually caused substantial health risks to Vensor and constituted a

sufficiently serious deprivation under the Eighth Amendment. See Johnson v.

Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (finding evidence that prisoners did not

receive sufficient protection from the elements to ward off heat-related illnesses

could establish deprivations “sufficiently serious to satisfy the objective

component of an Eighth Amendment claim”).

      Further, we conclude that the evidence presented at summary judgment was

sufficient to raise a triable dispute of fact as to whether defendants Cervantes and

Velasquez were deliberately indifferent to significant risks to Vensor’s health.

Vensor presented evidence that during the transport back to the prison, he was

soaked in sweat, had difficulty breathing and seeing, and felt dizzy and shaky.

When he tried to let Defendants know that the heat was making him ill, they

laughed off his complaints. Vensor states that he asked Defendants to give him


                                           3                                   14-16408
water from their jugs and pleaded with them to open the van door, but they ignored

his requests. Based on these facts, a jury could find that Defendants had actual

knowledge of substantial risks to Vensor’s health. See Jett v. Penner, 439 F.3d

1091, 1098 (9th Cir. 2006) (finding material issue of fact as to whether prison

officials knowingly failed to respond to prisoner’s requests for help). In addition

to the evidence suggesting Defendants had specific knowledge of the risks to

Vensor, a reasonable factfinder could conclude that the heat-related health risks of

being transported in an enclosed van without functional air conditioning or access

to water on a 114-degree day were obvious. See Farmer v. Brennan, 511 U.S. 825,

842 (1994) (stating that the fact that a risk is obvious supports the conclusion that a

prison official was aware of the risk).

      The district court did not abuse its discretion when it denied Vensor’s

motions for appointment of counsel because Vensor failed to demonstrate that

exceptional circumstances existed. See Palmer v. Valdez, 560 F.3d 965, 970 (9th

Cir. 2009) (setting forth standard of review and explaining “exceptional

circumstances” requirement). We do not express any opinion as to whether Vensor

could, on remand, demonstrate that exceptional circumstances exist in connection

with a renewed motion to appoint counsel.




                                           4                                    14-16408
      We reject as unsupported by the record Vensor’s contention that the district

court applied the wrong standard when considering Vensor’s motions for

appointment of counsel.

      We do not consider matters not specifically and distinctly raised in the

opening brief, or arguments and allegations raised for the first time on appeal or in

the reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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