Noah Goldman v. Bop

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2019
• Docket: 18-35445
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NOAH JAY GOLDMAN, No. 18-35445

Plaintiff-Appellant, D.C. No. 3:17-cv-01763-JR

v. MEMORANDUM* FEDERAL BUREAU OF PRISONS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Goldman’s motion to proceed in forma pauperis (Docket Entry No. 5) is

granted.

Former federal prisoner Noah Jay Goldman appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We

review for an abuse of discretion the denial of leave to amend. Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). We affirm

in part, vacate in part, and remand.

The district court did not abuse its discretion by dismissing without leave to

amend all of Goldman’s claims except for the claim regarding deliberate

indifference to serious medical needs because further amendment of these claims

would be futile. See id. (dismissal without leave to amend is proper “where a

plaintiff’s proposed amendments would fail to cure the pleading deficiencies and

amendment would be futile”); see also 42 U.S.C. § 12131(1) (defining public

entity for purposes of the Americans With Disabilities Act); Lane v. Pena, 518

U.S. 187, 191-92 (1996) (Rehabilitation Act has not waived federal government’s

sovereign immunity as to monetary damages); Flores v. County of Los Angeles,

758 F.3d 1154, 1159 (9th Cir. 2014) (to state a failure-to-train claim, a plaintiff

must show that the official “was deliberately indifferent to the need to train

subordinates”); Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010) (Health

Insurance Portability and Accountability Act of 1996 provides no private right of

action); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir.

1985) (charging a prisoner fees for medical care does not violate the Eighth

Amendment unless it prevents him from receiving medical care).

2 18-35445 However, the district court prematurely dismissed Goldman’s claim alleging

deliberate indifference to serious medical needs because it is not absolutely clear

that the deficiencies of this claim cannot be cured by amendment. Goldman

alleged that a private doctor prescribed him medication for his opioid addiction,

that prison officials denied him the prescription because the medication was not

approved by the Federal Bureau of Prisons, and that prison officials suggested an

alternative medication, but defendants “did not any provide alternatives.” See

Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (deliberate indifference

can be found when “officials denied treatment because [the plaintiff’s] medical

need conflicted with a prison policy, not because non-treatment was a medically

acceptable option”); Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)

(“Dismissal of a pro se complaint without leave to amend is proper only if it is

absolutely clear that the deficiencies of the complaint could not be cured by

amendment.” (citation and internal quotation marks omitted)). We vacate the

judgment in part and remand with instructions to provide Goldman with leave to

amend as to this claim only.

Goldman’s motion to appoint counsel (Docket Entry No. 6) is denied.

AFFIRMED in part; VACATED in part; and REMANDED.

3 18-35445