                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 20 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KENNETH SCHULTZ,                                 No. 12-16182

               Plaintiff - Appellant,            D.C. No. 1:11-cv-00988-MJS

  v.
                                                 MEMORANDUM *
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; J. KIM, M.D.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Michael J. Seng, Magistrate Judge, Presiding **

                           Submitted February 11, 2013 ***

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.




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

          ** Schultz 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).
      Kenneth Schultz, 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 medical needs. We have jurisdiction under 28 U.S.C. § 1291.

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

§§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000);

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

and remand.

      Liberally construed, the allegations in Schultz’s pro se complaint were

sufficient to state a claim for deliberate indifference where Schultz alleged that

defendant Dr. J. Kim was aware of Schultz’s severe pain, but refused to treat it or

investigate its underlying cause. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

Cir. 2004) (discussing objective and subjective elements of deliberate indifference

claim). Accordingly, we reverse the district court’s judgment and remand for

further proceedings.

      REVERSED and REMANDED.




                                           2                                    12-16182
