Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1990)

MEMORANDUM^*** 

Pursuant to our order of limited remand filed November 16, 1990, the district court found that Mary Adelia Evans' notice of appeal was delivered to prison authorities within the period for filing a notice of appeal. Thus, we have appellate jurisdiction.

The district court dismissed Evans' action for failure to prosecute. The dismissal was predicated on the magistrate's determination that Evans had failed to file a response to the magistrate's order to show cause why the defendants' motions to dismiss and for summary judgment should not be granted and the case dismissed for failure to prosecute. This determination is erroneous. As the defendants concede in their brief on appeal, Evans' response dated June 11, 1989 was filed in the district court. This response was filed within the time limit specified in the magistrate's order to show cause, and was sufficient to require the magistrate to rule on the merits of the defendants' motions.

Because Evans' case was erroneously dismissed, we vacate the judgment of dismissal and remand this case to the district court for consideration of the defendants' motions to dismiss and for summary judgment. In resolving the issues raised by the defendants' motions and Evans' response, the district court should consider whether any of the defendants may invoke the eleventh amendment to preclude suit against them in their official capacities for monetary damages. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173-74 (9th Cir. 1984). The district court should also consider whether any of the defendants is entitled to absolute or qualified immunity as to Evans' claims for monetary damages. See Fendler v. United States Parole Comm'n, 774 F.2d 975, 980 (9th Cir. 1985); Anderson v. Boyd, 714 F.2d 906, 908-09 (9th Cir. 1983); Sellars v. Procunier, 641 F.2d 1295, 1301-03 (9th Cir. 1981), cert. denied, 454 U.S. 1102 (1981). In addition, the district court should consider whether any of the defendants except possibly Robert Scheidler, who appears to be superintendent of the Oregon Women's Correctional Center, could implement the injunctive relief Evans seeks even if such relief were to be granted. See Or.Rev.Stat. Secs. 179.360(d) & 423.020(d) (1989).

If the district court believes that the resolution of any of the defendants' motions may implicate the question whether prisoners are entitled to some level of necessary psychological care, the district court may wish to consider appointing counsel to represent Evans.

We note that there is no constitutional right to rehabilitation. Hoptowit v. Ray, 682 F.2d 1237, 1255 (9th Cir. 1982). There is, however, a right to accessible and adequate physical, dental and mental health care. Id. at 1253. A denial of such care with deliberate indifference violates the eighth amendment. Id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976).

VACATED and REMANDED.