                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       DEC 22 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 MARIO MARTINEZ ARIAS,                            No. 16-16128

                   Plaintiff-Appellant,           D.C. No. 1:14-cv-00764-LJO-DLB

   v.
                                                  MEMORANDUM*
 A. JOHAL, Medical Doctor at North Kern
 State Prison; et al.,

                   Defendants-Appellees.

                     Appeal from the United States District Court
                        for the Eastern District of California
                     Lawrence J. O’Neill, Chief Judge, Presiding

                           Submitted December 14, 2016**

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Mario Martinez Arias, 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 his serious medical needs. We have jurisdiction under 28 U.S.C.



        *
             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).
§ 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C.

§§ 1915A and 1915(e)(2)(B)(ii). Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th

Cir. 2012); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We

affirm in part, reverse in part, and remand.

      The district court properly dismissed Arias’ deliberate indifference claims

against defendants Dr. Smith and Dr. Shittu because Arias failed to allege facts

sufficient to show that either Dr. Smith or Dr. Shittu knew of and disregarded an

excessive risk to Arias’ health. See Toguchi v. Chung, 391 F.3d 1051, 1057-58

(9th Cir. 2004) (setting forth elements of deliberate indifference; a prison official

acts with deliberate indifference only if the official knows of and disregards an

excessive risk to inmate health).

      However, dismissal of Arias’ deliberate indifference claim against Dr. Johal

was improper. Arias alleged in his amended complaint that Dr. Johal refused to

change the dressing or clean his wound and failed to prescribe antibiotics despite

signs of infection. These allegations are sufficient to state a claim of deliberate

indifference against Dr. Johal. See id. Accordingly, we reverse the judgment in

part, and remand for further proceedings.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           2                                    16-16128
