Lopez v. Madera County Department of Corrections ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 15 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
OMAR MIRAMONTES LOPEZ, No. 10-56689
Plaintiff - Appellant, D.C. No. 2:10-cv-06399-UA-OP
v.
MEMORANDUM*
MADERA COUNTY DEPARTMENT OF
CORRECTIONS,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted March 8, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Plaintiff-Appellant Omar Lopez brought § 1983 claims against five
individual unnamed defendants at the Madera County Department of Corrections
(collectively, “MCDC”), alleging that MCDC violated his Eighth and Fourteenth
Amendment rights by serving him rotten food and by delaying treatment for his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
deteriorating eye condition. The district court denied Lopez leave to file without
prepayment of the full filing fee, on the ground that Lopez’s complaint failed to
state a claim on which relief could be granted. We vacate, reverse, and remand.
1. Although the magistrate’s recommendation states that Lopez “requested
leave to proceed in forma pauperis,” the record does not indicate that Lopez ever
made such a request. We therefore vacate the district court’s order denying Lopez
leave to file the action without prepayment of the full filing fee.
2. The district court may have intended to dismiss Lopez’s complaint,
pursuant to mandatory screening under the Prison Litigation Reform Act
(“PLRA”), for failure to state a claim. See 28 U.S.C. § 1915A. So construing the
district court’s denial of leave to proceed in forma pauperis, see O’Neal v. Price,
531 F.3d 1146, 1153 (9th Cir. 2008), we conclude that the court erred in
dismissing the complaint.
Lopez’s complaint, as it now stands, may satisfy the relaxed pleading
standards applied to pro se plaintiffs. See Hebbe v. Pliler, 627 F.3d 338, 342 & n.7
(9th Cir. 2010). But even if it does not, the district court should have granted
Lopez leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(en banc).
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Lopez may well be able to cure the complaint’s deficiencies by alleging
additional facts. Lopez could, for example, amend his complaint to clarify: (1)
which MCDC staff members he informed of his toxoplasmosis diagnosis and need
for surgery; and (2) whether any defendants either acquiesced or were directly
involved in the alleged provision of rotten food. With such amendments, the
complaint would most likely render Lopez’s allegations adequate to support his
constitutional claims. See Jett v. Penner, 439 F.3d 1091, 1094, 1097-98 (9th Cir.
2006) (holding that a prison physician’s months-long delay in scheduling a medical
consultation ordered by the prisoner’s prior physician could constitute deliberate
indifference, where the record showed that the delay was harmful); Keenan v. Hall,
83 F.3d 1083, 1091 (9th Cir. 1996) (holding that the provision of spoiled food
violates the Eighth Amendment); see also Snow v. McDaniel, --- F.3d ----, No. 10-
16951, 2012 WL 1889774, at *8 (9th Cir. May 25, 2012) (holding that a prison
warden and associate warden could be held liable for deliberate indifference to a
prisoner’s medical needs, “[b]ecause they were aware [the prisoner] needed
surgery and failed to act to prevent further harm”). We therefore reverse the
dismissal of Lopez’s complaint.
3. MCDC argues that Lopez’s complaint is time-barred. Because the
district court did not address MCDC’s fact-bound statute of limitations defense, we
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decline to reach it here. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403
F.3d 683, 691 (9th Cir. 2005).
4. Lopez concedes that the Central District of California is an improper
venue. See 28 U.S.C. § 1391(b). On remand, the district court should consider
whether to transfer the case pursuant to 28 U.S.C. § 1406(a).
VACATED, REVERSED, and REMANDED.
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