Opinion
No. 12-16182 D.C. No. 1:11-cv-00988-MJS
02-11-2013
KENNETH SCHULTZ, Plaintiff - Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; J. KIM, M.D., Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding
Schultz consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c)
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Kenneth Schultz, 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 medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. §§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We reverse and remand.
Liberally construed, the allegations in Schultz's pro se complaint were sufficient to state a claim for deliberate indifference where Schultz alleged that defendant Dr. J. Kim was aware of Schultz's severe pain, but refused to treat it or investigate its underlying cause. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing objective and subjective elements of deliberate indifference claim). Accordingly, we reverse the district court's judgment and remand for further proceedings.
REVERSED and REMANDED.