Kurt Jeffrey Angelone v. MICHAEL FURST, Psychiatrist;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURT JEFFREY ANGELONE,
Plaintiff - Appellant,
v.
MICHAEL FURST, Psychiatrist; et al.,
Defendants - Appellees.
No. 09-35437
D.C. No. 3:07-cv-05538-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Kurt Jeffrey Angelone, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
violations of his federal constitutional rights. We have jurisdiction under 28
FILED
JUL 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
Cir. 2004), and we affirm in part, vacate in part, and remand.
The district court properly granted summary judgment on the Eighth
Amendment claims against defendants Figueroa, Wu, Amaru, Rossi, and Furst
because Angelone failed to raise a genuine issue of material fact as to whether their
treatment of his headaches and decisions regarding medications constituted
deliberate indifference. See id. at 1057-60 (a prison official acts with deliberate
indifference only if he knows of and disregards an excessive risk to inmate health,
and a difference of opinion concerning the appropriate course of treatment
generally does not amount to deliberate indifference).
The district court properly granted summary judgment to defendant Furst on
Angelone’s privacy claims because Angelone failed to present any evidence
supporting his claim that Furst violated his constitutional or legal rights. See
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (nonmoving party must present
significant probative evidence supporting its claim that material, triable issues of
fact remain).
However, the district court erred in dismissing Angelone’s claims against
Furst without addressing his claim of retaliation under the First Amendment. In
his verified complaint and opposition, Angelone alleged that Furst threatened to,

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and did, lie to Angelone’s medical provider about Angelone being a
benzodiazepines seeker, in retaliation for Angelone exercising his First
Amendment rights, thereby causing Angelone to be taken off Valium. Viewed in
the light most favorable to Angelone, this could raise a genuine issue of material
fact regarding Furst’s intent that Angelone be taken off Valium. See Bruce v. Ylst,
351 F.3d 1283, 1288-89 (9th Cir. 2003) (summary judgment not appropriate where
inmate raised a genuine issue as to whether the stated penological goal for the
allegedly retaliatory act was not legitimate). Accordingly, we remand for the
district court to consider this claim in the first instance.
Angelone’s remaining contentions are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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