                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2011

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




                             FOR THE NINTH CIRCUIT



GABRIEL RALPH REYES,                             No. 10-15462

               Plaintiff - Appellant,            D.C. No. 4:07-cv-03932-PJH

  v.
                                                 MEMORANDUM *
JOE McGRATH, Warden; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Gabriel Ralph Reyes, a California state prisoner, appeals pro se from the

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

force and deliberate indifference to serious medical needs in violation of the Eighth

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

          *
             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).
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). We affirm in part, reverse in part, and remand.

      The district court properly dismissed the excessive force claims arising from

the use of pepper spray and another chemical agent against inmates near Reyes’s

cell, because Reyes failed to allege that defendants acted “maliciously and

sadistically for the very purpose of causing harm.” See Clement v. Gomez, 298

F.3d 898, 903-04 (9th Cir. 2002).

      However, Reyes has stated a colorable medical deliberate indifference claim

against defendants Harkins, Navarro, and Swift. Reyes sufficiently alleged in his

complaint that these defendants were aware of both the potentially harmful effects

of pepper spray generally and of the specific symptoms suffered by Reyes in the

immediate aftermath of his exposure, and that they refused to provide Reyes with

any means through which to mitigate such harmful effects. See id. at 904

(deliberate indifference claim may lie where prison officials “were aware of the

harmful effects of the pepper spray and of the inadequacy of their ventilation

methods and yet purposefully refused to provide showers, medical care, or

combative instructions or to develop an adequate policy to address obvious risks”).

Accordingly, we remand for further proceedings on Reyes’s deliberate indifference

claim against defendants Harkins, Navarro, and Swift.


                                          2                                      10-15462
Reyes’s remaining contentions are unpersuasive.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.




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