Stanley H. Solvey v. S. GATES, Chief Healthcare Appeals at California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANLEY H. SOLVEY,
Plaintiff-Appellant,
v.
S. GATES, Chief Healthcare Appeals at
California Department of Corrections and
Rehabilitation; et al.,
Defendants-Appellees.
No. 20-16790
D.C. No. 1:19-cv-01444-DAD-
GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
California state prisoner Stanley H. Solvey appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference and retaliation claims. We have jurisdiction under 28 U.S.C. § 1291.
* 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).
FILED
JUN 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm in part,
reverse in part, and remand.
The district court properly dismissed Solvey’s claims for retaliation,
deliberate indifference to safety, and deliberate indifference regarding his diabetes
and seizure medications because Solvey failed to allege facts sufficient to state a
plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are construed liberally, a plaintiff must allege facts
sufficient to state a plausible claim); see also Farmer v. Brennan, 511 U.S. 825,
847 (1994) (explaining that a prison official acts with deliberate indifference if the
prison official “knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it”); Rhodes v.
Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (elements of a retaliation claim in
the prisoner context); Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir.
2004) (deliberate indifference is a high legal standard; medical malpractice,
negligence, or a difference of opinion concerning the course of treatment does not
amount to deliberate indifference).
The district court dismissed Solvey’s claims for deliberate indifference
regarding defendant Zepp’s treatment of Solvey’s testicular cyst because Solvey

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failed to state a plausible claim. However, Solvey alleged that Zepp refused to
provide Solvey with sufficient pain medication as he awaited surgery. Liberally
construed, these allegations “are sufficient to warrant ordering [Zepp] to file an
answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); Toguchi, 391
F.3d at 1057-60 (deliberate indifference standard). We therefore reverse the
judgment on this claim only and remand for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.

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