Tai Huynh v. Susan Hubbard

FILED
NOT FOR PUBLICATION MAR 06 2012

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

FOR THE NINTH CIRCUIT

TAI HUYNH, No. 11-15177

Plaintiff - Appellant, D.C. No. 2:09-cv-01979-KJM

v.
MEMORANDUM *
SUSAN HUBBARD; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Magistrate Judge, Presiding **

Submitted February 21, 2012 ***

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Tai Huynh, a California state prisoner, appeals pro se from the district

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

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

**
Huynh 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).
indifference to serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We reverse and remand.

The district court concluded that Huynh failed to allege any injury.

However, in his second amended complaint, Huynh alleges that after he tested

positive for tuberculosis, defendants refused to administer a preventative

tuberculosis treatment in a proper manner, and, as a result, he is now at a high risk

of developing active tuberculosis and multi-drug resistant tuberculosis. At this

early stage of the proceedings, we cannot say that these allegations fail to state an

Eighth Amendment injury. See Helling v. McKinney, 509 U.S. 25, 32-35 (1993)

(Eighth Amendment deliberate indifference claim can be based on threat of future

harm). Accordingly, we reverse the judgment and remand for further proceedings.

Huynh shall bear his costs on appeal.

REVERSED and REMANDED.

2 11-15177