NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSE YARBOROUGH, No. 14-55785

Plaintiff-Appellant, D.C. No. 5:10-cv-00346-VAP-PLA v.

J. L. NORWOOD; et al., MEMORANDUM*

Defendants-Appellees,

and

FRANCISCO J. QUINTANA, Official Capacity; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Submitted May 2, 2018** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

* 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). Former prisoner Jesse Yarborough appeals pro se the adverse grant of

summary judgment on his claims of sexual harassment and inadequate medical

treatment while in federal custody, pursuant to Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under

28 U.S.C. § 1291 and review the grant of summary judgment de novo. Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part, reverse in part, and

remand.

It was error to grant summary judgment against Yarborough on his claims that

Dr. Jesus Fernandez and Jimmy Elevaso1 were deliberately indifferent to his medical

needs by denying his requests for unused catheters. Although Yarborough rejected

recommendations for alternative treatments, Dr. Fernandez and Elevaso were still

obligated to provide some form of reasonable treatment. See, e.g., Ortiz v. City of

Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (holding a plaintiff alleging deliberate

medical indifference “need not prove complete failure to treat”).2 Additionally,

while Dr. Fernandez recalled that, “[o]n many occasions,” Yarborough did “not

1 We note that portions of the record spell Jimmy Elevaso as “Jimmy Elevazo.” 2 See also De’Lonta v. Johnson, 708 F.3d 520, 525–26 (4th Cir. 2013) (rejecting an argument that provision of some treatment for a serious medical need “necessarily” rendered the plaintiff’s claim of deliberate indifference legally insufficient and stating that “just because [officials] have provided [the plaintiff] with some treatment . . . it does not follow that they have necessarily provided her with constitutionally adequate treatment”).

2 return the full amount of catheters which were previously provided to him,” this

vague recollection was disputed by Yarborough in his deposition, and is too

ambiguous to prove the absence of a genuine dispute of material fact. Importantly,

this case is not about whether the one-for-one catheter swap was reasonable or

necessary; rather, this case is about whether Yarborough was denied sufficient

unused catheters to prevent repeated infections. Summary judgment does not permit

disregard of Yarborough’s factual account as a “bald assertion” while crediting Dr.

Fernandez’s similarly-conclusory account as true. See McLaughlin v. Liu, 849 F.2d

1205, 1207–08 (9th Cir. 1988).

It was also error to grant summary judgment against Yarborough on his claim

that Dr. Fernandez made sexual comments while performing multiple rectal

examinations. First, the court’s reliance on the absence of medical records

corroborating the exact date of an examination was misguided given Dr. Fernandez

agreed that at least one examination occurred. Second, the court’s conclusion that

Dr. Fernandez’s comments were not sufficiently offensive to human dignity to

constitute sexual harassment is a factual determination, and a reasonable jury could

find that Dr. Fernandez’s comments within the context of a rectal examination

served no penological justification. See Wood v. Beauclair, 692 F.3d 1041, 1048

(9th Cir. 2012).

3 However, there was no abuse of discretion in denying Yarborough’s request

for a continuance to conduct additional discovery because Yarborough failed to

identify any efforts to conduct discovery during the eight months before the

discovery deadline or how allowing additional discovery would have precluded

summary judgment. See Tatum v. City & Cty. of S.F., 441 F.3d 1090, 1100 (9th Cir.

2006).3

The district court is instructed to consider whether appointment of counsel on

remand is appropriate.

AFFIRMED in part, REVERSED in part, and REMANDED.

3 Yarborough’s request to amend the record, Doc. 28, is denied. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982) (“The bar of sovereign immunity cannot be avoided merely by naming officers and employees of the United States as defendants.”). Additionally, Dr. Fernandez and Elevaso’s motion to strike, Doc. 36, is denied as unnecessary because “[d]ocuments or facts not presented to the district court are not part of the record on appeal.” United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

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