Kenneth Schultz v. State of California Department of Corrections and Rehabilitation; J. Kim, M.d.

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH SCHULTZ,
Plaintiff - Appellant,
v.
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; J. KIM, M.D.,
Defendants - Appellees.
No. 12-16182
D.C. No. 1:11-cv-00988-MJS
MEMORANDUM*
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.
FILED
FEB 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-16182 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.

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