Shick v. Jacobs

46 F. App'x 492

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2002
• Docket: No. 01-17317; D.C. No. CV-99-00023-RCC
• Status: Published

Opinion

MEMORANDUM

**

Harold Dean Shick, an Arizona state prisoner, appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action against prison officials alleging deliberate indifference and denial of due process. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. O’Keefe v. Van Boening, 82 F.3d 322, 324 (9th Cir.1996). We affirm in part, vacate in part, and remand.

The district court properly granted summary judgment for defendants on Shick’s claim that he was denied due process in his disciplinary hearing because the disciplinary decision was supported by sufficient evidence in the record after a procedurally adequate hearing. See Neal v. Shimoda, 131 F.3d 818, 830-31 (9th Cir.1997).

The district court properly granted summary judgment on Shick’s claim that he was denied due process by being placed in administrative segregation because freedom from administrative segregation does not give rise to a protected liberty interest. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997).

The district court properly granted summary judgment on Shick’s claim of inadequate medical care because mis-diagnosis of a broken nose and a difference of opinion regarding the proper medical treatment of Shick’s rib condition do not constitute deliberate indifference to his serious medical needs. See Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir.1998).

The district court erred by granting summary judgment on Shick’s claim of deliberate indifference to his safety. In finding that the response to the risk of a fight between Shick and his cellmate was reasonable, the district court did not properly consider the allegations in Shick’s verified complaint. See Lopez v. Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir.2000) (en banc) (noting that verified complaint serves as affidavit for summary judgment purposes). Shick’s complaint creates genuine issues of material fact as to whether Jacobs was deliberately indifferent to his safety. We therefore reverse and remand for proceedings consistent with this opinion.

Shick’s remaining contentions lack merit.

Each party shall bear its own costs on appeal.

AFFIRMED in part, and VACATED and REMANDED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.