Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1988)

MEMORANDUM^** 

Roy M. Dossett, an Arizona state prisoner, appeals pro se the district court's grant of summary judgment in favor of Jay Meslin and Warden Duane R. Vild in Dossett's 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. Dossett also appeals from the district court's order dismissing his complaint as against Canteen Food Service on the ground that the complaint only involved acts that occurred before Canteen Food Service's contract with the prison began. We vacate the judgment and remand to the district court for further proceedings.

DISCUSSION

When the district court decides to treat a motion to dismiss a pro se litigant's complaint as a motion for summary judgment, the court must notify the pro se litigant of the change in status of the motion and must give the litigant a fair opportunity to respond. Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir. 1984). Further, the district court is required to provide the pro se litigant with fair notice of the requirements of the summary judgment rule. Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). This notice should include advice to the litigant that he must submit responsive evidence to ward off summary judgment. Id. at 411.

Here, defendants Vild and Meslin filed motions to dismiss or in the alternative motions for summary judgment. The district court initially notified Dossett that the motions would be treated as motions to dismiss, that Dossett must reply, and that failure to reply would be construed as consent to a dismissal. The district court again indicated that it was treating the motions as motions to dismiss in an order striking supplemental objections made by Dossett. In ruling on the motions, however, the district court decided to construe the motions as motions for summary judgment. The court did so without warning Dossett. Because the district court changed the status of the motions without warning Dossett of the change or advising him of the need to submit responsive evidence to ward off summary judgment, the district court erred in granting summary judgment. See Klingele, 849 F.2d at 411-12; Garaux, 739 F.2d at 439-40.

In light of our previous case law on the issue of deliberate indifference to serious medical needs, it appears that Dossett may be able to assert a cognizable claim under Sec. 1983. Hunt v. Dental Dept., 864 F.2d 198, 200-01 (9th Cir. 1989) (Eighth Amendment claim stated if facts show that prison officials were aware problem was causing prisoner severe pain and denied prisoner's repeated requests for treatment); Wood v. Sunn, 865 F.2d 982, 989 (9th Cir. 1989) (in deciding whether there has been deliberate indifference to inmate's serious medical needs, court need not defer to judgment of prison doctors or administrators); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (delay in treatment does not constitute deliberate medical indifference unless it was harmful).

The judgment in favor of Meslin and Vild is vacated and the case is remanded to give Dossett specific notice and a fair opportunity to respond to the summary judgment motions and to develop further the factual record. See Garaux, 739 F.2d at 440.

II. Summary Judgment in Favor of Canteen Food Service

The district court dismissed Dossett's complaint against Canteen Food Service because it found that the food service's contract with the prison did not begin until after Dossett's complaint was filed. Dossett filed his initial complaint on October 8, 1987. After being given leave to amend, he filed an amended complaint on January 6, 1988. This amended complaint alleged that Dossett's Eight Amendment right was violated on the basis of acts that occurred or failed to occur up until December 17, 1987. In its answer to the amended complaint, Canteen Food Service alleged that its contract to provide food service at the prison did not begin until November 5, 1987. Relying on this allegation, the district court dismissed Dossett's complaint against the food service because Dossett's initial complaint was filed on October 8, 1987, and contained only allegations of acts that occurred prior to that time.

As the district court pointed out when it granted Dossett leave to file an amended complaint, once an amended pleading is interposed, the original pleading is treated as nonexistent. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956), cert. denied, 353 U.S. 947 (1957). Dossett's amended pleading included allegations that throughout November and possibly in December, Canteen Food Service denied Dossett a soft food diet even though the diet had been ordered. Because Dossett made allegations regarding acts that occurred after November 5, 1987, when Canteen Food Service's contract commenced, the district court erred in dismissing the complaint against the food service. Thus, the judgment in favor of Canteen Food Service is vacated and the case is remanded to the district court to determine whether Canteen Food Service did act in violation of Dossett's Eighth Amendment right.

VACATED AND REMANDED.