Charles Reece v. Alvaro Traquina ( 2013 )

FILED
NOT FOR PUBLICATION JAN 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES G. REECE, No. 12-15930
Plaintiff - Appellant, D.C. No. 2:10-cv-02949-JAM-
DAD
v.
ALVARO C. TRAQUINA, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Charles G. Reece, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. §1983 action alleging that Traquina was
deliberately indifferent to his serious medical needs. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.12(b)(6),
Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and for an abuse of discretion
the denial of leave to amend, Gordon v. City of Oakland, 627 F.3d 1092, 1094-95
(9th Cir. 2010). We affirm in part, vacate in part, and remand.
The district court properly dismissed, without leave to amend, Reece’s claim
that Traquina violated his constitutional rights by not ensuring that a nurse was
available to take blood pressure in a specific location in the prison on certain dates
in May and June 2010, because there is no allegation that Traquina was personally
involved in any alleged lack of availability of a nurse at a particular location, and
the complaint and attachments thereto showed that Reece was aware of and utilized
alternative locations in the prison for testing his blood pressure. See Jeffers v.
Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (supervisory official may be liable under
§ 1983 only if he was personally involved in the constitutional deprivation, or if
there is “a sufficient causal connection between the supervisor’s wrongful conduct
and the constitutional violation”); see also Toguchi v. Chung, 391 F.3d 1051,
1057-58, 1060 (9th Cir. 2004) (deliberate indifference is a high legal standard;
mistakes, negligence or malpractice do not rise to an Eighth Amendment
violation).
However, as to Reece’s claim that Traquina was responsible for an
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institutional policy of failing to provide blood pressure screenings to inmates when
the prison was on lockdown, dismissal without leave to amend was premature
because it is not “absolutely clear” that the deficiencies of this claim could not be
cured by amendment. Weilberg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).
Accordingly, we vacate the judgment as to Reece’s claim that Traquina was
responsible for a prison policy or practice of denying access to blood pressure
screenings during lockdowns, and remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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