                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 15 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

OMAR MIRAMONTES LOPEZ,                           No. 10-56689

              Plaintiff - Appellant,             D.C. No. 2:10-cv-06399-UA-OP

  v.
                                                 MEMORANDUM*
MADERA COUNTY DEPARTMENT OF
CORRECTIONS,

              Defendant - Appellee.


                  Appeal from the United States District Court
                      for the Central District of California
                Audrey B. Collins, Chief District Judge, Presiding

                       Argued and Submitted March 8, 2012
                              Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

       Plaintiff-Appellant Omar Lopez brought § 1983 claims against five

individual unnamed defendants at the Madera County Department of Corrections

(collectively, “MCDC”), alleging that MCDC violated his Eighth and Fourteenth

Amendment rights by serving him rotten food and by delaying treatment for his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
deteriorating eye condition. The district court denied Lopez leave to file without

prepayment of the full filing fee, on the ground that Lopez’s complaint failed to

state a claim on which relief could be granted. We vacate, reverse, and remand.

      1. Although the magistrate’s recommendation states that Lopez “requested

leave to proceed in forma pauperis,” the record does not indicate that Lopez ever

made such a request. We therefore vacate the district court’s order denying Lopez

leave to file the action without prepayment of the full filing fee.

      2. The district court may have intended to dismiss Lopez’s complaint,

pursuant to mandatory screening under the Prison Litigation Reform Act

(“PLRA”), for failure to state a claim. See 28 U.S.C. § 1915A. So construing the

district court’s denial of leave to proceed in forma pauperis, see O’Neal v. Price,

531 F.3d 1146, 1153 (9th Cir. 2008), we conclude that the court erred in

dismissing the complaint.

      Lopez’s complaint, as it now stands, may satisfy the relaxed pleading

standards applied to pro se plaintiffs. See Hebbe v. Pliler, 627 F.3d 338, 342 & n.7

(9th Cir. 2010). But even if it does not, the district court should have granted

Lopez leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)

(en banc).




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      Lopez may well be able to cure the complaint’s deficiencies by alleging

additional facts. Lopez could, for example, amend his complaint to clarify: (1)

which MCDC staff members he informed of his toxoplasmosis diagnosis and need

for surgery; and (2) whether any defendants either acquiesced or were directly

involved in the alleged provision of rotten food. With such amendments, the

complaint would most likely render Lopez’s allegations adequate to support his

constitutional claims. See Jett v. Penner, 439 F.3d 1091, 1094, 1097-98 (9th Cir.

2006) (holding that a prison physician’s months-long delay in scheduling a medical

consultation ordered by the prisoner’s prior physician could constitute deliberate

indifference, where the record showed that the delay was harmful); Keenan v. Hall,

83 F.3d 1083, 1091 (9th Cir. 1996) (holding that the provision of spoiled food

violates the Eighth Amendment); see also Snow v. McDaniel, --- F.3d ----, No. 10-

16951, 2012 WL 1889774, at *8 (9th Cir. May 25, 2012) (holding that a prison

warden and associate warden could be held liable for deliberate indifference to a

prisoner’s medical needs, “[b]ecause they were aware [the prisoner] needed

surgery and failed to act to prevent further harm”). We therefore reverse the

dismissal of Lopez’s complaint.

      3. MCDC argues that Lopez’s complaint is time-barred. Because the

district court did not address MCDC’s fact-bound statute of limitations defense, we


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decline to reach it here. See Hells Canyon Pres. Council v. U.S. Forest Serv., 403

F.3d 683, 691 (9th Cir. 2005).

      4. Lopez concedes that the Central District of California is an improper

venue. See 28 U.S.C. § 1391(b). On remand, the district court should consider

whether to transfer the case pursuant to 28 U.S.C. § 1406(a).

      VACATED, REVERSED, and REMANDED.




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