Newton v. McCullough

Full title: Edward Richard NEWTON, Plaintiff-Appellant, v. Major MCCULLOUGH…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 15, 2001

22 F. App'x 794 (9th Cir. 2001)

Opinion

22 Fed.Appx. 794 (9th Cir. 2001) Edward Richard NEWTON, Plaintiff-Appellant, v. Major MCCULLOUGH, Defendant-Appellee. No. 01-15436. D.C. No. CV-98-02255-EHC. United States Court of Appeals, Ninth Circuit. November 15, 2001

Submitted November 5, 2001 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State prisoner filed § 1983 action alleging that warden acted with deliberate indifference by placing him in unsanitary cell and depriving him of cleaning supplies for fourteen days. The United States District Court for the District of Arizona, Earl H. Carroll, J., entered summary judgment in favor of warden, and prisoner appealed. The Court of Appeals held that fact issues remained as to whether warden knew or should have known of, and disregarded substantial risk of serious harm to inmate's health or safety.

Reversed and remanded.

Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding.

Before KLEINFELD, McKEOWN, and FISHER, Circuit Judges.

Page 795.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Edward Richard Newton, an Arizona state prisoner, appeals pro se the district court's summary judgment in his 42 U.S.C. § 1983 action alleging that defendant acted with deliberate indifference by placing him in an unsanitary cell and depriving him of cleaning supplies for fourteen days. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we reverse.

In opposition to defendant's motion for summary judgment, Newton presented a letter he had sent to defendant advising him that his cell was covered in feces. Newton's letter to defendant was sufficient to create a genuine issue of material of fact as to whether defendant knew or should have known of, and disregarded a substantial risk of serious harm to Newton's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Accordingly, we reverse the district court's grant of summary judgment and remand for further proceedings.

REVERSED AND REMANDED.