Aaron Daniels v. Mar , 670 F. App'x 491 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON K. DANIELS, No. 15-15359
Plaintiff-Appellant, D.C. No. 3:14-cv-00499-RCJ-
WGC
v.
MAR; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Aaron K. Daniels, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal 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).
§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)
(dismissal under § 1915(e)(2)(B)(ii)). We affirm in part, reverse in part, vacate in
part, and remand.
The district court properly dismissed Daniels’s Fourteenth Amendment due
process claim because Daniels had an adequate post-deprivation remedy under
Nevada law, and an inmate has no due process rights regarding the handling of
grievances. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized
intentional deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.”); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (order) (“There is
no legitimate claim of entitlement to a grievance procedure.”).
However, dismissal of Daniels’s deliberate indifference claim against
Dr. Mar was improper. Daniels alleged in his amended complaint that Dr. Mar
refused to approve orthopedic shoes previously approved by another doctor, even
though Daniels needed the shoes as a result of surgery and suffered overwhelming
pain without them. These allegations are sufficient to state a claim of deliberate
indifference against Dr. Mar. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (a prison official is deliberately indifferent if he or she knows of and
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disregards an excessive risk to an inmate’s health). Accordingly, if Daniels
includes this claim in his amended complaint on remand, these allegations are
sufficient to state a claim.
Dismissal of Daniels’s deliberate indifference claim against defendants
Jones, Garner, and Bannister was proper because Daniels failed to allege facts
sufficient to show that these defendants personally participated in the alleged
violations at issue. See Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014)
(outlining requirement of personal participation in the alleged constitutional
deprivation). Similarly, dismissal of Daniels’s deliberate indifference claim
against John Doe medical provider was proper because Daniels failed to allege
facts sufficient to show deliberate indifference. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face”
(citation and internal quotation marks omitted)). However, dismissal of these
claims without leave to amend was premature because it is not absolutely clear that
the deficiencies in Daniels’s complaint could not possibly be cured by amendment.
See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth
standard of review, and explaining that “a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines
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that the pleading could not possibly be cured by the allegation of other facts.”
(citation and internal quotation marks omitted)); Lucas v. Dep’t of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure
the defect, . . . a pro se litigant is entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of the action.”). Accordingly, we
vacate the judgment in part and remand to allow Daniels an opportunity to file an
amended complaint as to defendants Jones, Garner, Bannister, and John Doe.
Because the district court denied Daniels’s motion to proceed in forma
pauperis after concluding that Daniels’s complaint failed to state any claims, we
vacate the denial of leave to proceed in forma pauperis and remand for the district
court to reconsider the denial in light of our conclusion that the complaint states a
claim for relief. See O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990)
(standard of review).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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