Mario Arias v. A. Johal , 672 F. App'x 681 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO MARTINEZ ARIAS, No. 16-16128
Plaintiff-Appellant, D.C. No. 1:14-cv-00764-LJO-DLB
v.
MEMORANDUM*
A. JOHAL, Medical Doctor at North Kern
State Prison; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Mario Martinez Arias, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C.
§§ 1915A and 1915(e)(2)(B)(ii). Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th
Cir. 2012); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We
affirm in part, reverse in part, and remand.
The district court properly dismissed Arias’ deliberate indifference claims
against defendants Dr. Smith and Dr. Shittu because Arias failed to allege facts
sufficient to show that either Dr. Smith or Dr. Shittu knew of and disregarded an
excessive risk to Arias’ health. See Toguchi v. Chung, 391 F.3d 1051, 1057-58
(9th Cir. 2004) (setting forth elements of deliberate indifference; a prison official
acts with deliberate indifference only if the official knows of and disregards an
excessive risk to inmate health).
However, dismissal of Arias’ deliberate indifference claim against Dr. Johal
was improper. Arias alleged in his amended complaint that Dr. Johal refused to
change the dressing or clean his wound and failed to prescribe antibiotics despite
signs of infection. These allegations are sufficient to state a claim of deliberate
indifference against Dr. Johal. See id. Accordingly, we reverse the judgment in
part, and remand for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
2 16-16128