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393 F. App'x 518

Michael Smith v. Schwarzenegger

U.S. Courts of Appeals

Decided August 30, 2010

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U.S. Courts of Appeals · decided 2010-08-30

Cited by 4 later decisions — most recently February 2019

Key passage — most relied on by later courts

“Plaintiff has failed to ’show that any of the named Defendants were deliberately indifferent to a serious risk of harm to Plaintiffs health. Plaintiff does not allege that Defendants were aware of a particular threat to Plaintiffs health or that Plaintiff has been harmed as the result of Defendants’ actions or failure to act. Plaintiff alleges only that Defendants are aware of the general presence of valley fever in the areas in which Plaintiff is housed and that Plaintiff may contract valley fever. This is insufficient to establish an Eighth Amendment violation.”

quoted by 2 later decisions, including Jackson v. Brown, 137 F. Supp. 3d 1233 - Smith v. Schwarzenegger

Applies 28 U.S.C. § 1291 · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Helling v. McKinney · Herman Resnick v. Warden Hayes Lt. Ernst Officer Myers (Dho) Counselor Aune Officer Wade · Reddy v. Litton Industries, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 2010-08-30

View the full empirical analysis of this case →

¶1 MEMORANDUM …

¶2 Michael Lenoir Smith, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to a serious risk to his health. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and we affirm in part, vacate in part, and remand.

¶3 The district court correctly held that Smith could not bring a class action, or otherwise appear on behalf of other inmates. See McShane v. United States, 366 F.2d 286, 288 (9th Cir.1966) (lay person lacks authority to appear as an attorney for others). Therefore, the district court properly dismissed Count II and the portions of Counts I and III seeking to represent inmates other than Smith. See id.

¶4 In Counts I and III, Smith also sought to represent himself. The district court dismissed these counts -with prejudice because it determined that Smith failed to allege facts demonstrating that the defendants were deliberately indifferent to a serious risk to his health and that further amendment of Smith’s claims would be futile. In dismissing with prejudice, the district court erred because it is not beyond doubt that Smith could prove no set of facts in support of his claims that would entitled him to relief. See Reddy v. Litton Industries, Inc., 912 F.2d 291, 293 (9th Cir.1990) (a complaint should not be dismissed with prejudice unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief); Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (a prisoner “states a cause of action under the Eighth Amendment by alleging that [defendants] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health”). We therefore vacate in part and remand with instructions to allow Smith the opportunity to amend his complaint to allege facts demonstrating that the defendants are aware of a substantial risk to Smith’s health and have not taken action to prevent or minimize that risk.

¶5 Smith shall bear his own costs on appeal.

¶6 AFFIRMED in part; VACATED in part; and REMANDED.

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¶7 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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