Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1984)

Ernest Lee COX, Jr., Plaintiff-Appellant,v.J. CAMPOY et al., Defendant-Appellee.

No. 87-2786.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided April 4, 1990.

Before EUGENE A. WRIGHT, TANG and CANBY, Circuit Judges.


Ernest L. Cox, Jr., a California state prisoner, appeals the district court's judgment on the pleadings and dismissal of his 42 U.S.C. § 1983 action. Cox also appeals the district court's failure to rule on his claim that the prison warden denied him adequate medical attention. We review de novo, General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), and reverse.1 

On June 16, 1984, Cox was injured when he slipped and fell while working as a garbage worker at the prison. Prior to the accident, Cox had requested the prison guard for a job transfer because the working conditions were dangerous. Cox filed two section 1983 complaints in the district court. In the first complaint, Cox alleged that Cervetti, the prison guard, was responsible for his injuries due to the dangerous work conditions ("dangerous work claim"). The district court dismissed this complaint because it found Cox's allegations did not amount to a constitutional violation. In the second complaint, Cox alleged staff negligence and medical malpractice due to a forty hour delay in receiving appropriate medical attention after the accident ("medical treatment claim"). For reasons that remain unclear, this second complaint was never filed in the district court, and the district court found this allegation was not a claim in this action.

* Dangerous Work Claim

Cox contends the district court erred in dismissing his section 1983 complaint at the pleadings stage because the issues raised in his complaint were not susceptible to summary resolution. This contention has merit.

Judgment on the pleadings will be granted by the court only when there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Seventh-Day Adventist, 887 F.2d at 230. A prisoner may state a section 1983 claim under the Eighth or Fourteenth Amendments by showing deliberately indifferent official conduct caused the deprivation of a constitutionally protected right. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

The district court found that Cox's inartful complaint alleged only negligence, and negligent conduct does not amount to a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 330-31 (1986). However, Cox also alleged facts in his complaint raising a genuine issue of fact whether Cervetti acted with deliberate indifference in refusing Cox's request for a job transfer. See Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989). Therefore, Cervetti was not entitled to judgment as a matter of law. See Seventh-Day Adventist, 887 F.2d at 230.


Medical Treatment Claim

The district court also erred by not considering Cox's claim for inadequate medical care following the accident.

"In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623 (9th Cir. 1988). Moreover, "unless it is 'absolutely clear that the deficiencies of the complaint could not be cured,' " the district court must provide the plaintiff with a statement explaining the deficiencies and allow leave to amend. Id. at 623-24 (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).

The magistrate offered Cox an opportunity to amend his complaint, but did not inform him of the complaint's deficiencies regarding the medical treatment claim. It is not absolutely clear that Cox could not amend his complaint to state an Eighth Amendment violation. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) ("deliberate indifference to serious medical needs" may violate the Eighth Amendment). The district court should therefore allow Cox to amend his complaint to include the medical care claim.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


We acknowledge and appreciate Rick T. Haselton's exemplary work as appointed counsel on appellant's appeal. It is apparent that counsel should be appointed to represent Cox upon remand to the district court