FILED
NOT FOR PUBLICATION FEB 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KENNETH SCHULTZ, No. 12-16182
Plaintiff - Appellant, D.C. No. 1:11-cv-00988-MJS
v.
MEMORANDUM *
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; J. KIM, M.D.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding **
Submitted February 11, 2013 ***
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Schultz 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).
Kenneth Schultz, 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 medical needs. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a dismissal for failure to state a claim under 28 U.S.C.
§§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000);
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We reverse
and remand.
Liberally construed, the allegations in Schultz’s pro se complaint were
sufficient to state a claim for deliberate indifference where Schultz alleged that
defendant Dr. J. Kim was aware of Schultz’s severe pain, but refused to treat it or
investigate its underlying cause. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004) (discussing objective and subjective elements of deliberate indifference
claim). Accordingly, we reverse the district court’s judgment and remand for
further proceedings.
REVERSED and REMANDED.
2 12-16182