Lakeith McCoy v. M. Garikaparthi

FILED
NOT FOR PUBLICATION JUL 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LaKEITH L. McCOY, AKA LaKeith No. 14-17387
LeRoy McCoy,
D.C. No. 1:13-cv-01495-BAM
Plaintiff - Appellant,
v. MEMORANDUM*
M. GARIKAPARTHI, M.D. at CCI; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding**
Submitted June 22, 2015***
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
California state prisoner LaKeith L. McCoy, a.k.a. LaKeith LeRoy McCoy,
appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
McCoy 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).
action alleging Eighth Amendment 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. § 1915A); Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)).
We reverse and remand.
Dismissal of McCoy’s Eighth Amendment claims arising from the
deprivation of adequate food was premature. McCoy’s allegations, liberally
construed, were “sufficient to warrant ordering [defendants] to file an answer.”
Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Foster v.
Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (a prison official acts with deliberate
indifference if the official was aware of a substantial risk to the inmate’s health or
safety and deliberately disregarded the risk).
We do not consider McCoy’s contentions regarding an equal protection
claim because McCoy was granted leave to amend this claim but he did not
reallege it in the operative first amended complaint.
REVERSED and REMANDED.
2 14-17387