FILED

NOT FOR PUBLICATION MAY 30 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO R. JIMENEZ, No. 09-15194

Plaintiff - Appellant, D.C. No. 3:05-CV-00638-LRH-

RAM

v.

GREG COX; GLEN WHORTON; E.K. MEMORANDUM*

MCDANIEL, Warden; ADAM ENDEL;

R. CHAMBLISS; CLAUDE WILLIS;

MARK DRAIN; NEVADA

DEPARTMENT OF CORRECTIONS;

HAROLD CURRY; MIKE SCHEEL,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted May 8, 2012 Pasadena, California

Before: D.W. NELSON, FISHER, and CHRISTEN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Fernando Jimenez appeals the grant of summary judgment to prison officials

in his civil rights action pursuant to 42 U.S.C. § 1983. We have jurisdiction under

28 U.S.C. § 1291. We affirm summary judgment on Jimenez’s due process claim

but reverse and remand his First and Eighth Amendment claims for trial.

The district court correctly granted summary judgment on Jimenez’s due

process claim. Jimenez has failed to identify a liberty interest protected by the Due

Process Clause. Sandin v. Conner, 515 U.S. 472, 474 (1995). At oral argument,

Jimenez made clear that his due process claim is based solely on his designation as

a member of a Security Threat Group (“STG”), without tying that validation to his

extended confinement in administrative segregation. Jimenez has failed to show

that his STG designation in and of itself imposes an “atypical and significant

hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484; see also

Bruce v. Ylst, 351 F.3d 1283, 1287–88 (9th Cir. 2003) (recognizing that “some

evidence” supported prisoner’s identification as a gang member but without

expressly recognizing or creating a protected liberty interest).

The district court erred in granting summary judgment on Jimenez’s First

Amendment retaliation claim. Inmates enjoy a First Amendment right to file

prison grievances, and the Constitution forbids retaliation for the exercise of that

right. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (amended). Jimenez

2 has raised triable issues of fact (1) that correctional officer Mark Drain took

adverse actions against Jimenez by making threatening statements and by taking

steps to keep Jimenez in administrative segregation; (2) that Drain’s actions were

in retaliation for Jimenez filing a grievance against Drain’s stepson; (3) that

Drain’s actions chilled the exercise of Jimenez’s First Amendment rights; and

(4) that Drain’s actions did not reasonably advance a legitimate correctional goal.

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

The district court also erred in granting summary judgment on Jimenez’s

deliberate indifference claim. Inmates have an Eighth Amendment right to medical

care while in prison, Estelle v. Gamble, 429 U.S. 97, 103–04 (1976), and Jimenez

has raised a triable issue of fact whether Appellees were deliberately indifferent to

his serious medical needs, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Jimenez claims that he suffered cuts to his flesh, causing pain, bleeding, burning,

swelling, bruises, numbing and permanent scarring, and that a doctor prescribed

medication three weeks after he sustained his injuries, Thus, Jimenez has raised a

triable issue whether his injury was a serious medical one. See Clement v. Gomez,

298 F.3d 898, 902 (9th Cir. 2002) (stinging eyes and skin, coughing, gagging and

trouble breathing from pepper spray were serious medical needs). Jimenez also

claims that he requested medical treatment several times over the course of three

3 weeks, including on the day of his injury, Jimenez has raised a triable issue

whether Appellees acted purposefully to delay treatment. See Hunt v. Dental

Dep’t, 865 F.2d 198, 201 (9th Cir. 1989); see also McGuckin v. Smith, 974 F.2d

1050, 1060–61 (9th Cir. 1992) (“[A] finding that the defendant repeatedly failed to

treat an inmate properly . . . strongly suggests that the defendant’s actions were

motivated by deliberate indifference.” (internal quotation marks and citation

omitted)), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d

1133 (9th Cir. 1997) (en banc). Finally, Jimenez has raised triable issues of fact

whether the delay in treatment caused him harm. Jimenez has alleged harm

sufficient to raise a triable issue, and this harm need not be substantial, as the

district court erroneously required. McGuckin, 974 F.2d at 1060; . Costs on

appeal are awarded to Jimenez.

AFFIRMED in part; REVERSED and REMANDED in part.

4