Joseph L. Mizzoni v. State of Nevada;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH L. MIZZONI,
Plaintiff - Appellant,
v.
STATE OF NEVADA; et al.,
Defendants - Appellees.
No. 13-16471
D.C. No. 3:11-cv-00358-HDM-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Joseph L. Mizzoni, a Nevada state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
FILED
MAY 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

§ 1291. We review de novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir.
2014). We vacate and remand.
In granting summary judgment to defendants on Mizzoni’s claim that
Bannister was deliberately indifferent to his left eye cataract condition, the district
court did not have the benefit of our recent decision in Colwell, 763 F.3d at 1063
(concluding that “the blanket, categorical denial of medically indicated surgery
solely on the basis of an administrative policy that ‘one eye is good enough for
prison inmates’ is the paradigm of deliberate indifference.”). We vacate and
remand for the district court to consider in the first instance the application of
Colwell to Mizzoni’s Eighth Amendment claim against Bannister. Although not
raised by Mizzoni in his appeal, we suggest that on remand the district court
reconsider its decision whether to appoint counsel.
Because Mizzoni states in his reply brief that he “does not argue and
recommends dismissal” of his claim against defendant Robertson, we do not
address that claim.
Mizzoni’s pending requests for judicial notice are denied.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
13-16471 2

-- 2 of 2 --