NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK A. VINZANT,

Plaintiff

- Appellee,

v.

UNITED STATES OF AMERICA; et al.,

Defendants,

and

JESUS FERNANDEZ, M.D.; et al.,

Defendants

- Appellants. No. 15

- 56287

D.C. No.

5:07

- cv

- 00024

- VAP

- AJW

MEMORANDUM *

MARK A. VINZANT,

Plaintiff

- Appellee,

v.

UNITED STATES OF AMERICA; et al.,

Defendants,

and No. 15

- 56344

D.C. No.

5:07

- cv

- 00024

- VAP

- AJW

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JAN 27 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

S. A. HOLINCEK, Deputy Warden,

Defendant

- Appellant.

MARK A. VINZANT,

Plaintiff

- Appellant,

v.

UNITED STATES OF AMERICA; et al.,

Defendants,

and

S. A. HOLINCEK, Deputy Warden,

Defendant

- Appellee. No. 15

- 56361

D.C. No.

5:07

- cv

- 00024

- VAP

- AJW

Appeal fr om the United States District Court

for the Central District of California

Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted January 17, 2017

San Francisco, California

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

Judges.

Jesus Fernandez , Pratap Mesra, Louis Sterling, Stacey Allen, and S.A.

Holincek (collectively, “the officers”) appeal the district court’s denial of their

motion for summary judgment on qualified immunity as to Mark Vinzant’s Eighth3

Amendment deliberate in difference claim brought under 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 to review the “purely legal” question of

qualified immunity, Rodriguez v. Maricopa Cty. Cmty . Coll. Dist. , 60 5 F.3d 703,

707 (9th Cir. 2010), and we reverse.

We review the denial of qualified immunity with special attention to the

recent Supreme Court case White v. Pauly , No. 16

- 67, 2017 WL 69170 (U.S. Jan.

9, 2017), which was decided after the d istrict court’s summary judgment order

here

. We note that Vinzant re ceived co ntinuous medical care and Dr. Fernandez’s

prescription was for non

- emergency treatment . Th e short claimed delay in

providing the physical therapy appointment, which Vinzant declined to attend, d id

not violate clearly established law. See Plumhoff v. Rickard , 134 S. Ct. 2012, 2023

(2014) (noting that for a defendant to violate a clearly established right, “the right’s

contours [must have been] suff iciently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it”)

. The officers

are entitled to qualified immunity on Vinzant’s deliberate indifference claim

, and

summary judgment should be entered fo r the m

.

Vinzant cross

- appeal s the district court ’s ruling on the scope of this court’s4

mandate in Vinzant v. United States ( Vinzant I ), 584 F. App’x 601 (9th Cir. 2014)

.

T he district court appropriately understood th e mandate to confin e Vinzant’s claim

to the post

- prescription period. I n Vinzant I , we reversed only the district court’s

conclusion that Vinzant had waived his post

- prescription deliberate indifference

claim. Id. at 602. We decline to revisit th e mandate, as Vinzant I is not “clearly

err oneous [such that] its enforcement would work a manifest injustice.” See

Hegler v. Borg , 50 F.3d 1472, 147 5 (9th Cir. 1995)

. We reject the cross

- appeal

and affirm the district court’s determination with respect to this ruling

.

AFFIRMED IN PART, REVERSED IN PART.

Each party shall pay its own costs on appeal.