                                                                             FILED
                              NOT FOR PUBLICATION                             MAR 19 2015

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



                               FOR THE NINTH CIRCUIT


RENO FUENTES RIOS,                                No. 14-15817

                 Plaintiff - Appellant,           D.C. No. 1:12-cv-01334-SKO

  v.
                                                  MEMORANDUM*
CONNIE GIPSON, Warden, Warden of
CSP-Corcoran-SHU; et al.,

                 Defendants - Appellees.


                      Appeal from the United States District Court
                           for the Eastern District of California
                     Sheila K. Oberto, Magistrate Judge, Presiding**

                              Submitted March 10, 2015***

Before:         FARRIS, WARDLAW, and PAEZ, Circuit Judges.

       Reno Fuentes Rios, a California state prisoner, appeals pro se from the

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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
                Rios consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants were deliberately indifferent to his serious medical and dental needs.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal

under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443,

447 (9th Cir. 2000); 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 Rios’ claims regarding treatment of his

cataracts and glaucoma, hearing impairment, dry skin, and plantar fasciitis because

Rios failed to allege sufficient facts to show that defendants were deliberately

indifferent to his health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a

prison official is deliberately indifferent only if he or she “knows of and disregards

an excessive risk to inmate health”); see also Colwell v. Bannister, 763 F.3d 1060,

1068 (9th Cir. 2014) (“A difference of opinion between a physician and the

prisoner – or between medical professionals – concerning what medical care is

appropriate does not amount to deliberate indifference.” (internal citations and

quotation marks omitted)); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)

(although pro se pleadings are to be liberally construed, a plaintiff must present

factual allegations sufficient to state a plausible claim for relief).

       The district court acted within its discretion by dismissing these claims

without leave to amend after providing Rios with one opportunity to amend and


                                             2                                     14-15817
concluding that further amendment would be futile. See Lopez v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (en banc) (setting forth standard of review and

explaining that leave to amend should be given unless amendment would be futile);

see also Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th

Cir. 2008) (a district court’s discretion to deny leave to amend is particularly broad

where plaintiff has previously amended).

      The district court also properly dismissed Rios’ claims for injunctive and

declaratory relief because these claims were rendered moot when Rios was

transferred to another prison. See Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir.

2012) (injunctive and declaratory relief became moot upon inmate’s release from

custody because he was no longer subject to the conditions or policies he

challenged).

      However, dismissal of Rios’ claims regarding treatment of his asthma, nerve

pain, and dental issues was premature at this early stage of the proceedings. Rios

alleged that defendants told him they were providing inadequate treatment due to

budgetary constraints. Liberally construed, the allegations in the amended

complaint were “sufficient to warrant ordering [defendants] to file an answer.”

Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Colwell, 763

F.3d at 1068 (“[T]o show deliberate indifference, the plaintiff must show that the


                                           3                                    14-15817
course of treatment the doctors chose was medically unacceptable under the

circumstances and that the defendants chose this course in conscious disregard of

an excessive risk to plaintiff’s health.” (internal citations and quotation marks

omitted)); cf. Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)

(allowing jury to consider budgetary constraints under which a doctor operates in

determining whether he or she is liable for money damages).

      We do not consider allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED in part, REVERSED in part, and REMANDED.




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