FILED
NOT FOR PUBLICATION MAR 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL LOUIS FOSTER, No. 10-15968
Plaintiff - Appellant, D.C. No. 1:08-cv-01849-LJO-SMS
v.
A. ENENMOH; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Michael Louis Foster, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that
prison officials were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo a district court’s dismissal for failure to state a claim under 28
U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm
in part, reverse in part, and remand.
The district court properly dismissed Foster’s claims against defendants
Raman and Jean-Pierre because Foster failed to allege facts showing that these
defendants acted with deliberate indifference to his medical needs. See Toguchi v.
Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) (a prison official acts with
deliberate indifference only if he or she knows of and disregards an excessive risk
to the prisoner’s health and safety; negligence and a mere difference in medical
opinion are insufficient to establish deliberate indifference). The district court did
not abuse its discretion when it dismissed these claims without leave to amend.
See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir.
2008) (“‘[T]he district court’s discretion to deny leave to amend is particularly
broad where plaintiff has previously amended the complaint.’” (citation omitted)).
However, we reverse the judgment as to defendant Enenmoh and remand for
further proceedings. Construing the allegations in the light most favorable to
Foster, Enenmoh denied Metamucil to treat Foster’s constipation only because
Metamucil was “non-formulary.” Enenmoh allegedly knew that Metamucil had
been effective for Foster, and that the other treatment he prescribed was causing
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Foster pain and worsening his constipation. In addition, when Enenmoh became
the chief medical officer, he allegedly denied Foster’s treating doctor’s requests to
prescribe Metamucil for Foster’s constipation. Accepting these allegations as true,
we cannot say at this early stage in the proceedings that Foster fails to state a claim
for deliberate indifference. See Resnick, 213 F.3d at 447 (the court must accept all
factual allegations as true and construe the facts in the light most favorable to the
plaintiff in determining whether the complaint states a claim under § 1915A, and
the court must liberally construe pro se pleadings); Jett v. Penner, 439 F.3d 1091,
1097 (9th Cir. 2006) (a prison official may be liable for deliberate indifference if
he fails to provide an inmate with medical care for reasons unrelated to the
prisoner’s medical needs, such as for administrative concerns).
Foster’s appeal of the denial of his motion for a preliminary injunction is
moot. See SEC v. Mount Vernon Mem’l Park, 664 F.2d 1358, 1361 (9th Cir. 1982)
(futile to review a district court’s ruling on a request for preliminary relief where
the district court has already issued a decision on the merits).
Foster shall bear his own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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