NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL A. FIGUEROA, No. 17-16078
Plaintiff-Appellant, D.C. No. 2:16-cv-04220-DJH-JZB
v.
MEMORANDUM*
CHARLES L. RYAN, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Arizona state prisoner Gabriel A. Figueroa appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2012). We affirm in part, reverse in part, and remand.
The district court properly dismissed Figueroa’s due process claim and
medical deliberate indifference claim against all defendants except defendants
Grafton, Johnson, and Ryan because Figueroa failed to allege facts sufficient to
state any plausible claim for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th
Cir. 2010) (although pro se pleadings are to be liberally construed, a plaintiff must
present factual allegations sufficient to state a plausible claim for relief); see also
Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (setting forth requirements
for a deliberate indifference claim and stating that negligence is insufficient to
establish a constitutional violation); Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1139 (9th Cir. 2012) (setting forth the elements of a § 1983 claim against a private
entity performing a government function).
However, dismissal of Figueroa’s medical deliberate indifference claim
against defendants Grafton, Johnson, and Ryan was premature because Figueroa
alleged that he told Grafton, Johnson, and Ryan that he was suffering
complications and side effects from his medications, and that Grafton, Johnson,
and Ryan refused to help. These allegations, liberally construed, are “sufficient to
warrant ordering [these defendants] to file an answer.” Wilhelm, 680 F.3d at 1116.
2 17-16078
We reverse the dismissal of Figueroa’s medical deliberate indifference claim
against defendants Grafton, Johnson, and Ryan, and remand for further
proceedings as to these defendants only.
AFFIRMED in part, REVERSED in part, and REMANDED.
3 17-16078