Larry Giraldes, Jr. v. Dr. Roche;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY GIRALDES, JR.,
Plaintiff - Appellant,
v.
DR. ROCHE; et al.,
Defendants - Appellees.
No. 08-15388
D.C. No. CV-06-02277-
MCE/CMK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Larry Giraldes, Jr., a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
retaliation and medical deliberate indifference in violation of the First and Eighth
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

/Research 08-15388 2
Amendments. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), and we affirm in part, vacate
in part, and remand.
The district court properly granted summary judgment on Giraldes’s Eighth
Amendment claims regarding his knee condition and need for pain management
because Giraldes failed to raise a triable issue as to whether defendants’ chosen
course of treatment was medically unacceptable under the circumstances. See
Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004).
As for the remaining Eighth Amendment claims, the district court’s ruling
was based on (1) defendants’ showing that Giraldes was provided some treatment
and referred to a specialist, and (2) Giraldes’s failure to establish that he was
denied treatment altogether. Although Giraldes admitted that the defendants
provided some treatment, he argued that the treatment provided was medically
unacceptable under the circumstances. See Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996) (stating that a plaintiff can support a claim of deliberate
indifference by showing that a physician’s treatment decision was motivated by
something other than medical judgment). In opposition to summary judgment,
Giraldes submitted medical records, a sworn declaration, and deposition testimony
and contended that, as reprisal to Giraldes for filing a previous lawsuit, defendants

-- 2 of 3 --

/Research 08-15388 3
refused to follow the course of treatment recommended by the specialist. Because
the district court’s order is silent regarding the evidence submitted in opposition to
summary judgment, we vacate the judgment with respect to the Eighth Amendment
claims concerning Giraldes’s gastrointestinal disease and dumping syndrome, and
the First Amendment retaliation claims, and remand for the district court to
consider in the first instance whether that evidence raises a triable issue.
The district court did not abuse its discretion by denying Giraldes’s motions
for appointment of counsel because, at that stage of proceedings, Giraldes failed to
demonstrate “exceptional circumstances” warranting appointment of counsel.
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
Accordingly, we vacate the grant of summary judgment on Giraldes’s Eighth
Amendment claims related to his gastroesophageal disease and dumping syndrome,
vacate the grant of summary judgment on the First Amendment claims, and
remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

-- 3 of 3 --