Reno Rios v. Connie Gipson , 599 F. App'x 294 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENO FUENTES RIOS, No. 14-15817
Plaintiff - Appellant, D.C. No. 1:12-cv-01334-SKO
v.
MEMORANDUM*
CONNIE GIPSON, Warden, Warden of
CSP-Corcoran-SHU; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted March 10, 2015***
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Reno Fuentes Rios, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Rios consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants were deliberately indifferent to his serious medical and dental needs.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000); 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 Rios’ claims regarding treatment of his
cataracts and glaucoma, hearing impairment, dry skin, and plantar fasciitis because
Rios failed to allege sufficient facts to show that defendants were deliberately
indifferent to his health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a
prison official is deliberately indifferent only if he or she “knows of and disregards
an excessive risk to inmate health”); see also Colwell v. Bannister, 763 F.3d 1060,
1068 (9th Cir. 2014) (“A difference of opinion between a physician and the
prisoner – or between medical professionals – concerning what medical care is
appropriate does not amount to deliberate indifference.” (internal citations and
quotation marks omitted)); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are to be liberally construed, a plaintiff must present
factual allegations sufficient to state a plausible claim for relief).
The district court acted within its discretion by dismissing these claims
without leave to amend after providing Rios with one opportunity to amend and
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concluding that further amendment would be futile. See Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc) (setting forth standard of review and
explaining that leave to amend should be given unless amendment would be futile);
see also Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th
Cir. 2008) (a district court’s discretion to deny leave to amend is particularly broad
where plaintiff has previously amended).
The district court also properly dismissed Rios’ claims for injunctive and
declaratory relief because these claims were rendered moot when Rios was
transferred to another prison. See Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir.
2012) (injunctive and declaratory relief became moot upon inmate’s release from
custody because he was no longer subject to the conditions or policies he
challenged).
However, dismissal of Rios’ claims regarding treatment of his asthma, nerve
pain, and dental issues was premature at this early stage of the proceedings. Rios
alleged that defendants told him they were providing inadequate treatment due to
budgetary constraints. Liberally construed, the allegations in the amended
complaint were “sufficient to warrant ordering [defendants] to file an answer.”
Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Colwell, 763
F.3d at 1068 (“[T]o show deliberate indifference, the plaintiff must show that the
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course of treatment the doctors chose was medically unacceptable under the
circumstances and that the defendants chose this course in conscious disregard of
an excessive risk to plaintiff’s health.” (internal citations and quotation marks
omitted)); cf. Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)
(allowing jury to consider budgetary constraints under which a doctor operates in
determining whether he or she is liable for money damages).
We do not consider allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED in part, REVERSED in part, and REMANDED.
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