                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 25 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAY LYNN PEMBER,                                 No. 15-15627

               Plaintiff-Appellant,              D.C. No. 2:11-cv-02332-SMM

 v.
                                                 MEMORANDUM*
AL RAMOS; et al.,

               Defendants-Appellees.


                     Appeal from the United States District Court
                              for the District of Arizona
                   Stephen M. McNamee, District Judge, Presiding

                            Submitted August 16, 2016**

Before:        O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges

      Arizona state prisoner Jay Lynn Pember appeals pro se from the district

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

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

Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013). We

           *
             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).
affirm in part, reverse in part, and remand.

      The district court granted summary judgment for defendant Dr. Baird

because it found that the record showed a mere difference in medical opinion

regarding the need for surgery and no personal participation by Dr. Baird in

Pember’s alleged lack of adequate pain medication. However, there is nothing in

the existing record that shows why Dr. Baird failed to schedule Pember for surgery

in 2009 and as a result, there is a genuine dispute of material fact as to whether Dr.

Baird’s alleged failure to schedule Pember for surgery in 2009 and his alleged

inadequate treatment of Pember’s herniated disc and related pain was deliberately

indifferent. See Fed. R. Civ. P. 56(a) (stating movant’s burden on summary

judgment); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (plaintiff can

show deliberate indifference if “the course of treatment the doctors chose was

medically unacceptable under the circumstances”). Accordingly, we reverse the

judgment for Dr. Baird and remand for further proceedings.

      Because Pember only challenges summary judgment on his deliberate

indifference claim against Dr. Baird, we affirm the remainder of the district court’s

summary judgment.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.


                                           2                                    15-15627
