Unpublished Disposition, 872 F.2d 430 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Scott brought this Sec. 1983 action in district court seeking injunctive and damage relief for alleged constitutional violations which occurred while appellant was a pretrial detainee at the Clark County Correctional Center. Specifically, appellant claims (1) that appellee prison officials denied him adequate access to prison library facilities in violation of the First, Fifth and Fourteenth Amendments, and (2) that appellees failed to provide adequate medical treatment for viral infections appellant suffered in the Spring of 1987, in violation of the Eighth and Fourteenth Amendments. The district court granted appellees' motion to dismiss both of appellant's claims, holding that appellant had failed to state a claim of cruel and unusual punishment under the Eighth and Fourteenth Amendments, and that district court consideration of appellant's inadequate access claims was barred by the abstention doctrine first discussed in Younger v. Harris, 401 U.S. 37 (1971).

After the case was submitted to us, we vacated submission and called for supplemental briefing on the question whether appellant's claim for injunctive relief, as distinguished from his claim for money damages, is moot. See Unpublished Order, January 27, 1989. On the basis of these supplemental briefs, we now affirm the district court's dismissal of appellant's Eighth Amendment claim and remand to the district court to consider appellant's claim for monetary relief stemming from the alleged constitutionally inadequate access to prison library facilities.

* The district court dismissed appellant's Eighth Amendment claim because prison officials did not manifest a "deliberate indifference to a serious medical need," which is the Eighth Amendment standard the Supreme Court laid down in Estelle v. Gamble, 429 U.S. 97 (1976). We agree with the district court that neither a "head cold" nor a "sore throat"--the symptoms appellant alleges--is a "serious medical need" for the purposes of the Eighth Amendment. Accordingly, we affirm the dismissal of this claim.

II

Appellant's claim for injunctive relief stemming from inadequate access to library facilities is now moot. Appellant is no longer being held at the Clark County Correctional Center, and all state court criminal proceedings against him have terminated.

This leaves appellant's claim for monetary damages stemming from the inadequate access. The district court declined to adjudicate this claim because of Younger abstention principles. Since Younger is applicable only when there are state court proceedings pending or imminent, Younger is no longer a bar to federal court adjudication of appellant's Sec. 1983 claim for monetary damages. Although we are unable to determine what, if any, damages appellant has suffered as a result of the alleged inadequate access, this is a matter for the district court to consider in the first instance. Accordingly, we remand to the district court to consider appellant's claim for monetary damages resulting from the alleged inadequate access to prison library facilities. We do so without expressing any opinion on the merits of that claim.

AFFIRMED IN PART AND REMANDED.