Smith v. Friedman

FILED
NOT FOR PUBLICATION APR 12 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

REGINALD SMITH, No. 07-16662

Plaintiff - Appellant, D.C. No. CV-05-02541-WHA

v.
MEMORANDUM *
MICHAEL L. FRIEDMAN; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding

Submitted April 5, 2011 **

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

Reginald Smith, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his safety and medical needs. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a dismissal pursuant to 28 U.S.C. § 1915A.

*
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).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, reverse in

part, and remand.

The district court concluded that Smith had abandoned his claims against

defendant Adam because Smith did not re-allege those claims in the amended

complaint. However, the district court’s initial order of dismissal, filed on March

10, 2006, states: “Plaintiff’s claims against defendant Adams [sic] are cognizable

under 42 U.S.C. § 1983. For reasons of judicial economy, however, service of

those claims will be held until plaintiff files an amended complaint, so all claims

can proceed together. If plaintiff fails to timely amend his complaint, or if the

amended claims are dismissed after review, the herein cognizable claims will be

served.” Once the district court dismissed Smith’s amended claims, it should have

ordered service of the claims against Adam, consistent with its prior order.

Accordingly, we reverse the dismissal as to Adam, and remand for further

proceedings.

The district court properly concluded that Smith’s allegations against the

remaining defendants failed to state a claim for deliberate indifference. See Estelle

v. Gamble, 429 U.S. 97, 106 (1976) (“In order to state a cognizable claim, a

prisoner must allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.”).

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 Smith’s “Motion for Consider[a]tion,” filed on May 18, 2009, is denied as

unnecessary.

AFFIRMED in part, REVERSED in part, and REMANDED.

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