                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 12 2011

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




                             FOR THE NINTH CIRCUIT



MITCHELL FIELDS,                                  No. 10-15542

               Plaintiff - Appellant,             D.C. No. 2:08-cv-00659-KJD-
                                                  GWF
  v.

BRUCE BANNISTER, Medical Director                 MEMORANDUM *
for Nevada Department of Corrections; et
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Mitchell Fields, a Nevada state prisoner, appeals pro se from the district

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

violations, and claims under the Americans with Disabilities Act (“ADA”). We

          *
             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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Barnett v. Centoni,

31 F.3d 813, 815 (9th Cir. 1994) (per curiam) (summary judgment); Wyatt v.

Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (exhaustion). We may affirm on any

basis supported by the record. Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th

Cir. 2002). We affirm in part, vacate in part, and remand.

      Summary judgment was proper on the Eighth and Fourteenth Amendment

claims against defendants Bannister and Skolnik because Fields failed to raise a

genuine dispute of material fact as to whether their actions amounted to deliberate

indifference to his serious medical needs. See Farmer v. Brennan, 511 U.S. 825,

837 (1994) (to be deliberately indifferent, a prison official must “know[ ] of and

disregard[ ] an excessive risk to inmate health or safety”); Sanchez v. Vild, 891

F.2d 240, 242 (9th Cir. 1989) (a difference of opinion about the best course of

medical treatment does not amount to deliberate indifference); see also Taylor v.

List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises

only upon a showing of personal participation by the defendant.”).

      Summary judgment was proper on the ADA claim because Fields did not

raise a triable dispute as to whether he was discriminated against by reason of, or

entitled to an accommodation for, a disability. See O’Guinn v. Lovelock Corr.




                                          2                                    10-15542
Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (listing elements of a claim under Title II

of the ADA).

      However, we vacate the judgment dismissing Fields’s excessive force claim

because defendants have failed to carry their burden of proving that Fields failed to

exhaust administrative remedies. See Wyatt, 315 F.3d at 1116-17, 1120

(incomplete and unauthenticated record is inadequate to establish nonexhaustion).

For instance, because it is unclear from the record when Fields received the

prison’s responses to his grievances, we cannot verify the timeliness of his appeals.

See Nev. A.R. 740.02 § 1.3.2 (time limits shall begin to run from the date an

inmate receives a response for appeal); see also Sapp v. Kimbrell, 623 F.3d 813,

823 (9th Cir. 2010) (exhaustion is not required where administrative remedies are

“effectively unavailable” because of improper screening of grievances).

Accordingly, we vacate the district court’s judgment and remand for further

proceedings on this claim.

      Dismissal of Fields’s retaliation claim for failure to exhaust administrative

remedies was also improper because the record shows that both of Fields’s

attempts to file grievances regarding his allegedly retaliatory placement in

administrative segregation were improperly rejected as duplicates of his excessive




                                          3                                     10-15542
force grievance. Accordingly, we vacate the district court’s judgment and remand

for further proceedings on this claim as well. See Sapp, 623 F.3d at 823.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         4                                  10-15542
