                               NOT FOR PUBLICATION                        FILED
                        UNITED STATES COURT OF APPEALS                     JUN 29 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                                  FOR THE NINTH CIRCUIT


JOSEPH E. GAXIOLA,                                  No. 14-16548

           Plaintiff-Appellant,                     D.C. No. 3:13-cv-01989-WHA

  v.
                                                    MEMORANDUM*
M. SAYRE, M.D., SUE RISENHOOVER,
F.N.P., K. VAIL,

           Defendants-Appellees,

C. WILLIAMS, Dr.,

           Defendant.

                        Appeal from the United States District Court
                          for the Northern District of California
                         William Alsup, District Judge, Presiding

                           Argued and Submitted May 12, 2016
                                San Francisco, California

Before: McKEOWN, SACK**, and FRIEDLAND, Circuit Judges.

       Plaintiff Joseph E. Gaxiola, a California state inmate, appeals from the


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
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district court's grant of summary judgment on his 42 U.S.C. § 1983 claims alleging

deliberate indifference to serious medical needs in violation of the Eighth

Amendment. We have jurisdiction under 28 U.S.C. § 1291 and review the grant of

summary judgment de novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir.

2014). We affirm in part, reverse in part, and remand.

      We conclude that the district court erred in granting summary judgment

against Gaxiola on his claim that the Defendants*** acted with deliberate

indifference in failing to treat his condition after the July 1, 2008 incident. Gaxiola

has presented evidence that a prison nurse observed him having a grand mal

seizure on this date, that he subsequently experienced several syncopal episodes

that could have been due to seizure disorder, and that he did not receive follow-up

testing until approximately four months after the incident. Viewing the record in

the light most favorable to Gaxiola, we conclude that a reasonable juror could find

that the Defendants "kn[ew]" that he suffered from a seizure disorder as of July 1,

2008, but "disregard[ed] [this] excessive risk" to his health by delaying the

provision of adequate treatment or testing. See Farmer v. Brennan, 511 U.S. 825,

837 (1994); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (stating

that a delay in medical treatment can amount to deliberate indifference, and that

"[a] prisoner need not show his harm was substantial").

      ***
             Defendant C. Williams, Dr., was never served and never appeared.

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      The district court further erred in granting summary judgment on Gaxiola's

claim that Defendants Sayre and Risenhoover were deliberately indifferent to his

later-diagnosed seizure disorder when they decided to discontinue his anti-seizure

medication. To prevail on this claim, Gaxiola must demonstrate that the decision

"was medically unacceptable under the circumstances" and was made "in

conscious disregard of an excessive risk to [his] health." Toguchi v. Chung, 391

F.3d 1051, 1058 (9th Cir. 2004) (quoting Jackson v. McIntosh, 90 F.3d 330, 332

(9th Cir. 1996)). Gaxiola has raised a genuine dispute of material fact as to the

medical basis for discontinuing his medication in light of (a) the five seizures or

seizure-like incidents he suffered after he stopped taking this medication, and (b)

the cursory explanation offered for this decision, which relied on a few days when

Gaxiola did not take his medication with no adverse effects, eight months without

seizure activity while he was still on his medication, and medical records that pre-

dated his seizure disorder diagnosis. See also Hunt v. Dental Dep't, 865 F.2d 198,

200 (9th Cir. 1989) ("[W]e need not defer to the judgment of prison doctors or

administrators" to "decid[e] whether there has been deliberate indifference to an

inmate's serious medical needs.").

      Summary judgment for the Defendants on Gaxiola's deliberate indifference

claims concerning the denial of a neurologist consultation and the delayed

provision of protective head gear was proper. See Estelle v. Gamble, 429 U.S. 97,


                                          3
107 (1976) (whether "additional diagnostic techniques or forms of treatment" are

appropriate "is a classic example of a matter for medical judgment" that falls

outside the scope of a deliberate indifference claim); Lemire v. Cal. Dep't of Corr.

& Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013) (negligence or gross negligence

does not constitute deliberate indifference). The Defendants were also entitled to

summary judgment on Gaxiola's claim of deliberate indifference to his chronic

headaches and vision problems, which sounds in negligence and therefore fails.

See Lemire, 726 F.3d at 1082; Estelle, 429 U.S. at 106 ("[A] complaint that a

physician has been negligent in diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under the Eighth Amendment.").

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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