Javiad Akhtar v. J. Mesa, et al

Filing

FILED OPINION (ARTHUR L. ALARCON, SUSAN P. GRABER and MARSHA S. BERZON) VACATED; REMANDED. Judge: ALA Authoring, FILED AND ENTERED JUDGMENT. [8387277]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAVIAD AKHTAR,
Plaintiff - Appellant,
v.

No. 11-16629
D.C. No.
2:09-CV-2733FCD-GGH P

J. MESA , S. TURNER; L. WARD ,
individually and in their official
capacities,
Defendants - Appellees.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Argued and Submitted
September 14, 2012–San Francisco, California
Filed November 5, 2012
Before: Arthur L. Alarcón, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Alarcón

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AKHTAR V . MESA
SUMMARY*

Prisoner Civil Rights
The panel vacated the district court’s dismissal of a
prisoner’s complaint brought under 42 U.S.C. § 1983 alleging
deliberate indifference to serious medical needs, and
remanded. The panel held that given plaintiff’s pro se status,
limited English skills and disabilities, the district court erred
by refusing to consider arguments that plaintiff raised for the
first time in his objections to a magistrate judge’s findings
and recommendations on defendants’ motion to dismiss. The
panel also held that plaintiff had provided enough detail in his
administrative grievance to exhaust his Eighth Amendment
claim because the grievance gave notice that defendants had
failed to comply with plaintiff’s medical “chrono” requiring
him to be housed in a ground-floor cell. The panel held that
the complaint set forth sufficient facts to show that defendants
were deliberately indifferent when they failed to comply with
the medical chrono and that the district court erred by
dismissing the complaint without explaining the deficiencies
in the complaint and leave to amend and also without
providing plaintiff notice pursuant to Rand v. Rowland,
154 F.3d 952, 960-61 (9th Cir. 1998) (en banc).

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Carter C. White and Roya S. Laden (argued), U.C. Davis
School of law, Davis, California, for the Plaintiff-Appellant.
Misha Igra, AGCA - Office of the California Attorney
General, Sacramento, California, for the DefendantsAppellees.

OPINION
ALARCÓN, Circuit Judge:
In this prisoner civil rights action filed pursuant to
42 U.S.C. § 1983, Javiad Akhtar appeals from the dismissal
with prejudice of his first amended complaint for deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment. In his complaint, Akhtar alleged that
Correctional Officer J. Mesa and Correctional Sergeant S.
Turner (“Appellees”) violated his federal constitutional rights
by failing to comply with his medical “chrono,”1 which
required him to be housed in a ground floor cell.2 He also
alleged that Appellees failed to provide him with an
interpreter at medical appointments. We must decide whether

1

A “chrono” is collection of informal notes taken by prison officials
documenting medical orders.
2

Akhtar also sued Lieutenant L. W ard and Mule Creek State Prison.
Akhtar’s claims against these defendants are not at issue on appeal.

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the district court erred by (1) refusing to consider arguments
that Akhtar raised for the first time in his objections to a
magistrate judge’s findings and recommendations on
Appellees’ motion to dismiss, (2) concluding that Akhtar
failed to exhaust his administrative remedies, and
(3) dismissing his complaint on the ground that he failed to
state a claim upon which relief can be granted. After
reviewing the record and relevant authority, we vacate the
judgment and remand.
I
Akhtar is a California prisoner incarcerated at Mule Creek
State Prison. He suffers from numerous medical conditions,
including chronic kidney disease, coronary artery disease,
uncontrolled hypertension, hyperlipidemia (high cholesterol),
cerebrovascular accident (stroke), hyperuricemia (gout), and
gastroesophageal reflux disease. Akhtar has “little English
speaking or reading skills, . . . has been deemed illiterate, . .
. [and] has permanent brain damage from a motorcycle
accident.” He is also mobility and hearing impaired.
On December 2, 2008, Akhtar was informed by Officer
Mesa that he was being moved to an emergency bunk (“Ebunk”) located in an open dormitory in the day room of the
building. He showed Officer Mesa and Sergeant Turner his
medical chrono and told them that he would rather go to
Administrative Segregation (“Ad-Seg”) than move to an E-

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bunk. He was issued a CDC-1153 Rules Violation Report and
placed in Ad-Seg for refusing to move from his cell to an Ebunk in the dayroom of the prison.
On December 9, 2008, Akhtar received another CDC-115
for refusing to move to an E-bunk in the dayroom. Officer
Mesa and Sergeant Turner were not involved in that incident.
Akhtar was subsequently moved to a triple bunk E-bunk
in the dayroom, at least 75 feet from the closest urinal.
Akhtar fell from his bunk bed and broke his wrist. He also
suffered embarrassment and humiliation because, given that
there were only two toilets and one urinal for the forty beds in
the dayroom, he was often unable to reach the restroom in
time and urinated in his clothes.
Akhtar filed a grievance on January 1, 2009, in which he
appealed the December 9, 2008 CDC-115 Rules Violation
Report. In the grievance, Akhtar stated that prison staff were
deliberately indifferent to his well-being and that he was
denied due process because he did not receive an interpreter
and staff assistant. Akhtar’s administrative grievance was
denied, as was his Second Level Appeal and Director’s Level
Appeal.
Akhtar filed a second grievance on January 5, 2009, in
which he appealed the December 2, 2008 CDC-115 Rules
Violation Report. In that grievance, Akhtar stated that he

3

A CDC-115 Rules Violation Report is a disciplinary report issued by
prison officials when a prisoner misbehaves.

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“was punished for protecting [his] rights.” Akhtar contended
that he was justified in refusing to move to the E-bunk
because his chrono excluded him from “Dayroom and Gym
dormitory bunk living.” Akhtar alleged that the corrections
officials were aware of his medical condition, but were
deliberately indifferent to it in ordering that he be transferred
to an E-bunk. Akhtar also stated that his due process rights
were violated because he was not provided an interpreter or
staff assistant. Akhtar’s grievance was denied, as was his
Second Level Appeal and Director’s Level Appeal.
On October 1, 2009, Akhtar filed a complaint in the
district court against Officer Mesa and Sergeant Turner. In
his initial complaint, Akhtar stated a claim under 42 U.S.C.
§ 1983 for deliberate indifference to his serious medical
needs, based on Appellees’s failure to comply with his
medical chrono regarding his housing needs. Akhtar attached
the January 1, 2009, and the January 5, 2009 grievances as
exhibits to his complaint, along with copies of the Second
Level Appeals and Director’s Level Decisions. Magistrate
Judge Gregory G. Hollows dismissed Akhtar’s initial
complaint pursuant to 28 U.S.C. § 1915A(b), with leave to
amend. Thereafter, Akhtar filed his first amended complaint.
In that complaint, Akhtar re-alleged a deliberate indifference
claim pursuant to the Eighth Amendment based on Appellees’
failure to comply with his medical chrono regarding housing.
He also alleged two new claims for deliberate indifference to
a serious medical need based on the failure to provide an
interpreter at medical appointments, and a requirement that he
pay a $350 filing fee.

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Akhtar attached several documents as exhibits to his first
amended complaint. They included medical records, a
Comprehensive Accommodation Chrono, a Disability
Placement Program Verification form, and a February 11,
2010 Second Level Appeal Response regarding his request for
an interpreter at medical appointments and institutional
hearings. Akhtar did not attach to his first amended
complaint copies of his January 1 and 5, 2009 grievances and
his administrative appeals.
Magistrate Judge Hollows issued a screening order,
pursuant to 28 U.S.C. § 1915A(a), in which he stated that
Akhtar had filed “a cognizable claim for relief pursuant to
42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against the
individual appellees. If the allegations of the amended
complaint are proven, plaintiff has a reasonable opportunity
to prevail on the merits of this action.”
Appellees filed a motion to dismiss the first amended
complaint for failure to exhaust his administrative remedies
or to state a claim upon which relief can be granted.
Magistrate Judge Hollows advised Akhtar that the failure to
file a written opposition or to file a statement of no opposition
may be deemed a waiver of any opposition to the motion
pursuant to Local Rule 230(1). Akhtar did not file an
opposition to the motion. Magistrate Judge Hollows
concluded that Akhtar’s failure to file an opposition “should
be deemed a waiver of opposition to granting the motion.” In
his findings and recommendations, he also determined that
Akhtar had failed to exhaust his administrative remedies and
failed to state a claim under the Eighth Amendment.
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Akhtar filed an objection to Magistrate Judge Hollows’s
findings and recommendations. He asked that the district
court construe his objection to the findings and
recommendations as an opposition to Appellees’ motion to
dismiss. Akhtar attached copies of the January 1 and January
5, 2009 grievances, and related administrative appeals, to his
objection to the findings and recommendations. The district
court issued an order declining to consider Akhtar’s
objections to the motion to dismiss his first amended
complaint. It adopted Magistrate Judge Hollows’s findings
and his recommendations; dismissed the first amended
complaint with prejudice; and entered judgment in favor of
Appellees.
On May 5, 2011, Akhtar filed a motion to alter or amend
the judgment which the district court denied. Akhtar filed a
timely notice of appeal. The district court had jurisdiction
under 28 U.S.C. § 1331. We have jurisdiction pursuant to
28 U.S.C. § 1291.4

4

Because the other defendants named in the first amended complaint
were not served with process, the district court’s order dismissing Akhtar’s
first amended complaint as to Officer Mesa and Sergeant Turner “may be
considered final under Section 1291 for the purpose of perfecting an
appeal.” Patchick v. Kensington Publ’g Corp., 743 F.2d 675, 677 (9th
Cir. 1984) (per curiam).

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II
A
Akhtar contends that the district court abused its
discretion in refusing to consider the arguments that he raised
in his objections to Magistrate Judge Hollows’s findings and
recommendations. He also maintains that, even if the district
court had “actually exercised its discretion,” it abused that
discretion by failing to consider his arguments. We review
this issue for abuse of discretion. Brown v. Roe, 279 F.3d
742, 744 (9th Cir. 2002).
In United States v. Howell, 231 F.3d 615, 621 (9th Cir.
2000), we joined the First and Fifth Circuits in holding “that
a district court has discretion, but is not required, to consider
evidence presented for the first time in a party’s objection to
a magistrate judge’s recommendation.” We cautioned,
however, that “in making a decision on whether to consider
newly offered evidence, the district court must actually
exercise its discretion, rather than summarily accepting or
denying the motion.” Id. at 622.
In Brown, applying Howell, we concluded that the district
court had failed to “actually exercise[] its discretion,” as there
was nothing in the record that showed that it had. Brown,
279 F.3d at 745 (citing Howell, 231 F.3d at 622). We stated
that there was “nothing in the record that shows the district
court ‘actually exercise[d] its discretion,’ in refusing to
consider Brown’s newly-raised claim.” Id. (alteration in
original) (quoting Howell, 231 F.3d at 622). We also
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explained that, given that the plaintiff was pro se and had
presented a “relatively novel claim under a relatively new
statute . . . . , even if the district court had ‘exercised its
discretion,’ it would have been an abuse of that discretion to
refuse to consider petitioner Brown’s equitable tolling claim.”
Id.
Two years later, in Jones v. Blanas, 393 F.3d 918 (9th Cir.
2004), we again held that a district court abused its discretion
by failing to consider arguments raised for the first time in a
pro se plaintiff’s objections to a magistrate judge’s findings.
Once again, we concluded that the district court did not
“actually exercise its discretion.” Id. at 935 (internal
quotation marks omitted). We also explained that, “given the
circumstances under which this evidence was offered–a pro
se plaintiff, ignorant of the law, offering crucial facts as soon
as he understood what was necessary to prevent summary
judgment against him–it would have been an abuse of
discretion for the district court not to consider the evidence.”
Id.
Akhtar contends that as in Brown and Jones, the record in
this case does not show that the court actually exercised its
discretion in considering his objections to Magistrate Judge
Hollows’s findings and recommendations. We disagree.
Although the district court’s order is brief, it stated correctly
that, pursuant to Howell, “[a] district court has the discretion,
but is not required, to consider evidence presented for the first
time in a party’s objection to a magistrate judge’s
recommendation.” The district court noted that Akhtar did
not explain in his objections why he failed to file a timely
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opposition to Appellees’ motion to dismiss. The court
“elect[ed] to exercise its discretion not to consider an
opposition to a motion to dismiss inappropriately presented
by plaintiff for the first time in objections.” Id.
Akhtar asserts that, even if the district court “actually
exercised its discretion,” it abused it because, like the plaintiff
in Brown, he is proceeding pro se. In Brown and Jones, we
emphasized that the failure to consider a plaintiff’s status as
a pro se litigant is a ground for concluding that the district
court abused its discretion. Jones, 393 F.3d at 935; Brown,
279 F.3d at 745. Given that Akhtar’s objections directed the
court to crucial facts showing he may have exhausted his
administrative remedies and that he is a pro se litigant, who
is illiterate, disabled, and has limited English skills, the
district court abused its discretion by failing to consider these
circumstances.
Moreover, the critical documents, the January grievances
and resulting decisions, had been attached to the original
complaint. Under recent case law, that complaint was not
entirely superseded when the amended complaint was filed,
and so could have been considered by the magistrate judge in
considering exhaustion. See Lacey v. Maricopa Cnty., – F.3d
–, 2012 WL 3711591, at *18, *21 (9th Cir. 2012 Aug. 29,
2012) (en banc) (holding that an amended complaint does not
supersede an earlier complaint so as to require a party to
replead claims dismissed with prejudice and without leave to
amend to preserve those claims for appeal).

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Further, if there is any doubt whether the documents
attached to the original complaint were still part of the
operative pleadings, the magistrate judge also could have
considered the documents as part of the record in considering
Appellees’ motion to dismiss for failure to exhaust
administrative remedies. In deciding such a motion–which is
considered an unenumerated Rule 12(b) motion – “the court
may look beyond the pleadings.” Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003). That the information in question
was not actually new to the case is another reason the district
court abused its discretion in failing to consider it.
B
Akhtar next contends that the district court erred because
it concluded that he failed to exhaust his administrative
remedies. Akhtar contends that he satisfied the administrative
exhaustion requirement of the Prison Litigation Reform Act
(“PLRA”) of 1995 before filing his initial complaint and his
first amended complaint. We review a dismissal for failure to
exhaust de novo and factual findings for clear error. O’Guinn
v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007).
1
As an initial matter, Appellees contend that we should
ignore Akhtar’s arguments on appeal because he waived them
by failing to file a timely opposition to the motion to dismiss.
Appellees’ reliance on Bolker v. Commissioner, 760 F.2d
1039 (9th Cir. 1985), to support this contention is misplaced.
Bolker stands for the proposition that, “[a]s a general rule, we
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will not consider an issue raised for the first time on appeal,
although we have the power to do so.” Id. at 1042 (citation
omitted). Bolker does not require us to ignore Akhtar’s
contentions because he failed to file a timely opposition to a
motion to dismiss in the district court.
Indeed, the Bolker rule presumes that the issue was not
raised in the district court. In this case, Akhtar presented his
objections to Magistrate Judge Hollows’s findings and
recommendations in the district court, as well as in the motion
to alter or amend the judgment. In fact, the district court
addressed the issues that Akhtar raises in this appeal in its
order denying his motion to alter or amend the judgment.
Appellees have not cited any portion of Bolker, or any other
case, that suggests we should ignore Akhtar’s contentions
because he failed to assert them in a motion opposing
Magistrate Judge Hollows’s recommendation that his
complaint be dismissed.
2
With respect to exhaustion, “we have held that the failure
to exhaust nonjudicial remedies that are not jurisdictional
should be treated as a matter in abatement, which is subject to
an unenumerated Rule 12(b) motion.” Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003). Exhaustion under the
PLRA is not jurisdictional. Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 869 (9th Cir. 2011), cert. denied, 132 S. Ct.
1540 (2012). Thus, a defendant may raise failure to exhaust
under the PLRA in an unenumerated Rule 12(b) motion. See
Wyatt, 315 F.3d at 1119-20 (“In deciding [such] a motion . .
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. , the court may look beyond the pleadings and decide
disputed issues of fact.”).
“The [PLRA] requires that a prisoner exhaust available
administrative remedies before bringing a federal action
concerning prison conditions.” Griffin v. Arpaio, 557 F.3d
1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. § 1997e(a)
(2008)). “‘[A]n action is ‘brought’ for purposes of
[exhaustion under] § 1997e(a) when the complaint is tendered
to the district clerk,’ and not when it is subsequently filed.”
Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006)
(quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)).
The failure to exhaust administrative remedies is an
affirmative defense on which the defendant bears the burden
of proof. Wyatt, 315 F.3d at 1119. Because “there can be no
absence of exhaustion unless some relief remains available, a
defendant must demonstrate that pertinent relief remain[s]
available, whether at unexhausted levels of the grievance
process or through awaiting the results of the relief already
granted as a result of that process.” Brown v. Valoff, 422 F.3d
926, 936-37 (9th Cir. 2005) (internal quotation marks
omitted).
We have held that “a prisoner does not comply with [the
exhaustion] requirement by exhausting available remedies
during the course of the litigation.” McKinney v. Carey,
311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). If,
however, a plaintiff files an amended complaint adding new
claims based on conduct that occurred after the filing of the
initial complaint, the plaintiff need only show that the new
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claims were exhausted before tendering the amended
complaint to the clerk for filing. Rhodes v. Robinson,
621 F.3d 1002, 1007 (9th Cir. 2010).
Akhtar’s first amended complaint asserts two deliberate
indifference claims, both of which required exhaustion under
the PLRA. These claims rest on Appellees’ (1) failure to
comply with Akhtar’s medical chrono regarding housing and
(2) failure to provide an interpreter at medical appointments.
We address, in turn, the question whether each claim was
exhausted.
i
Akhtar asserted his claim for failure to comply with his
medical chrono regarding housing in his initial complaint.
Neither party disputes that this claim arose before Akhtar
filed that complaint. Thus, Akhtar was required to exhaust
this claim before he filed his initial complaint. See
McKinney, 311 F.3d at 1200-01 (requiring pre-suit exhaustion
under the PLRA).
Akhtar contends that the evidence attached to his initial
complaint and objections to Magistrate Judge Hollows’s
findings and recommendations shows that he exhausted his
medical deliberate indifference claim. Akhtar attached the
January 1 and 5, 2009 grievances, along with the related
Second Level Appeals and Director’s Level Decisions, to his
initial complaint and objections.

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The documents attached to Akhtar’s objection to
Magistrate Judge Hollows’s findings and recommendations,
as well as the allegations and attachments to his initial
complaint, show that he exhausted his medical deliberate
indifference claims in May 2009, several months before he
filed his initial complaint. In his January 5, 2009 grievance,
Akhtar appealed the CDC-115 Rules Violation Report that he
received for refusing to move to an E-bunk on December 2,
2008. In that grievance, Akhtar stated that he “was punished
for protecting [his] rights.” According to Akhtar, he was
justified in refusing to move to the E-bunk because his chrono
excluded him from “Dayroom and Gym dormitory bunk
living.” Akhtar suggesed that the corrections officials were
aware of his medical condition, but were deliberately
indifferent to that condition by attempting to transfer him to
an E-bunk. Akhtar also stated that his due process rights were
violated because he did not receive an interpreter or staff
assistant.
Akhtar appealed the denial of this grievance. He received
a Second Level Appeal denying his claim on February 26,
2009. He received a Director’s Level Decision, denying his
claim on May 28, 2009. The Director’s Level Decision
showed that the prison was aware that Akhtar contended that
the move to an E-bunk violated his medical chrono because
it construed his medical chrono as not precluding E-bunk
housing. Specifically, the Director’s Level Decision stated
that “the appellant’s medical chronos limit him to lower
tier/lower bunk housing. The appellant was ordered to move
to a lower bunk bed; therefore, he was not precluded from
obeying the order.”
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Appellees contend that the January 5, 2009 grievance
addressed only Akhtar’s due process claim. We disagree.
“The level of detail necessary in a grievance to comply with
the grievance procedures will vary from system to system and
claim to claim, but it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007). For prisons, like
Mule Creek State Prison, that do not instruct prisoners on
what precise facts must be alleged in a grievance, “‘a
grievance suffices if it alerts the prison to the nature of the
wrong for which redress is sought.’” Griffin, 557 F.3d at
1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.
2002)). Akhtar’s January 5, 2009 grievance provided enough
detail to exhaust his Eighth Amendment claim because it
provided notice that Appellees had failed to comply with
Akhtar’s medical chrono requiring him to be housed in a
ground-floor cell.
Appellees also contend that Magistrate Judge Hollows
“screened out” Akhtar’s claims based on the January 5, 2009
grievance. This contention is misleading. In his screening
order on the initial complaint, Magistrate Judge Hollows
dismissed with leave to amend, any due process challenges to
the hearings on Akhtar’s CDC-115s. Akhtar, however, is not
challenging the dismissal of his due process challenges to his
CDC-115s. Rather, he is challenging the dismissal of his
Eighth Amendment deliberate indifference claim. Appellees
have not shown that Magistrate Judge Hollows “screened out”
this claim.

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Appellees’ attempt to focus on Akhtar’s August 7, 2009
grievance regarding housing as evidence that he failed timely
to exhaust this claim is not persuasive. Appellees maintain
that Akhtar’s claim fails because he did not receive a
Director’s Level Review on this grievance until November 2,
2009, one month after Akhtar filed his first amended
complaint. While Akhtar’s August 7, 2009 grievance did
address his deliberate indifference claim based on housing, he
did not need to receive a Director’s Level Decision on that
grievance before filing his first amended complaint because,
as discussed above, he had already exhausted that claim.
Thus, Akhtar’s subsequent post-suit exhaustion of the August
7, 2009 grievance is immaterial.
Because Akhtar received a Director’s Level Decision on
his January 5, 2009 grievance before he filed his initial
complaint in which he alleged his deliberate indifference
claim based on housing, he exhausted this claim.5 Thus, the
district court erred by dismissing this claim for failure to
exhaust.
ii
Appellees did not challenge Akhtar’s claim that he was
deprived of an interpreter in their motion to dismiss the first

5

Akhtar also contends that his January 1, 2009 grievance exhausted his
administrative remedies. That grievance, however, did not provide notice
of his contention that Appellees ignored his medical chrono. In addition,
it related to the December 9, 2008 incident, which did not involve Officer
Mesa or Sergeant Turner.

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amended complaint. The record is not clear as to when this
claim arose. Appellees have not pointed to any evidence
establishing that this claim arose before Akhtar filed his
initial complaint or that it was not timely exhausted. Thus,
the district court erred by dismissing this claim for failure to
exhaust.
C
Akhtar further contends that the district court erred by
dismissing his first amended complaint on the alternative
ground of failure to state a claim. He argues that the court
overlooked the allegations in his pleading supporting his
claim and did not explain the basis for its decision. We
review this issue de novo. Hebbe v. Pliler, 627 F.3d 338,
341 (9th Cir. 2010).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). When reviewing a
motion to dismiss, we “consider only allegations contained in
the pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice.” Swartz v. KPMG LLP,
476 F.3d 756, 763 (9th Cir. 2007) (per curiam).
“[W]e have an obligation where the petitioner is pro se,
particularly in civil rights cases, to construe the pleadings
liberally and to afford the petitioner the benefit of any doubt.”
Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en
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banc). In fact, “before dismissing a pro se complaint the
district court must provide the litigant with notice of the
deficiencies in his complaint in order to ensure that the
litigant uses the opportunity to amend effectively.” Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (citing Noll v.
Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987), superseded
on other grounds by statute as stated in Lopez v. Smith,
203 F.3d 1122 (9th Cir. 2000)) (en banc). A district court
should not dismiss a pro se complaint without leave to amend
unless “it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” Schucker v.
Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988) (per
curiam) (internal quotation marks omitted).
In ruling on Appellees’ motion to dismiss for failure to
state a claim, neither the district court nor Magistrate Judge
Hollows explained the deficiencies in Akhtar’s first amended
complaint. Rather, the district court adopted Magistrate
Judge Hollows’s findings and recommendations, which
contained only the following brief parenthetical footnoted
conclusion on this issue: “this court . . . finds this action
should be dismissed on ground 1 (as well as on ground 2 for
failing to state a claim under the Eighth Amendment).”
The district court did not comply with our precedent
regarding the dismissal of pro se prisoner civil rights
complaints for failure to state a claim. The defects are of
particular significance given that the grounds for dismissal
were not readily apparent. To comply with the law of this
circuit, the district court was required to explain the
deficiencies in Akhtar’s first amended complaint. It also
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should have dismissed with leave to amend unless it was
absolutely clear that Akhtar could not cure the deficiencies by
amendment. The district court did neither.
In their motion to dismiss the first amended complaint,
Appellees argued that Akhtar’s deliberate indifference claim
failed because they “did not subject Akhtar to any serious
medical risk, never intended to harm Akhtar, and in fact
Akhtar was not harmed.”6 On appeal, Appellees focus on
Akhtar’s alleged failure to show “a causal relationship
between Appellees and any supposed violation of his
constitutional rights.”
In Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006), we held
that there is a two-pronged test for evaluating a claim for
deliberate indifference to a serious medical need:
First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s
condition could result in further significant injury or
the unnecessary and wanton infliction of pain.
Second, the plaintiff must show the defendant’s
response to the need was deliberately indifferent.
This second prong . . . is satisfied by showing (a) a
purposeful act or failure to respond to a prisoner’s

6

In their motion to dismiss, Defendants did not challenge, on the
grounds of failure to state a claim, Akhtar’s deliberate indifference claim
based on failure to provide an interpreter or his non-specific claim
regarding the $350 filing fee.

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pain or possible medical need and (b) harm caused by
the indifference.

Id. at 1096 (internal quotation marks and citations omitted).
Akhtar’s first amended complaint set forth sufficient facts
to show that he had a serious medical need. Akhtar alleged
that he suffered from numerous medical conditions and was
hearing and mobility impaired. Akhtar also attached a
Comprehensive Accommodation Chrono dated October 9,
2008 and disability verification form dated August 23, 2006,
as exhibits to his first amended complaint. The Chrono stated
that Akhtar required a “bottom bunk” and “ground floor cell.”
The disability verification form stated that Akhtar is “mobility
impaired” and had housing restrictions requiring a “lower
bunk,” “no stairs,” and “no triple bunk.” These allegations
and exhibits are sufficient to show that Akhtar has a serious
medical need.
Contrary to Appellees’ contention, the medical records
attached to the first amended complaint do not contradict
Akhtar’s allegation that he has a serious medical need. The
fact that the records show that a doctor concluded, at a certain
point in time, that Akhtar’s kidney function was stable does
not contradict Akhtar’s allegation that he suffered from
numerous other medical conditions.
Akhtar’s first amended complaint also set forth sufficient
facts to show that Appellees were deliberately indifferent.
Akhtar alleged that he showed his medical chrono requiring
a lower bunk in a ground-floor cell to Officer Mesa and
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Sergeant Turner. He also alleged that they ignored the
medical chrono by moving him to an E-bunk in the dayroom.
Akhtar also alleged that he was harmed as a result of
Appellees’ failure to comply with his chrono. He alleged that
he suffered a broken wrist. He also suffered humiliation and
embarrassment on several occasions because he urinated in
his clothes.
Contrary to Appellees’ contentions, the fact that Akhtar’s
medical records attached to the first amended complaint do
not show that he suffered any adverse medical conditions as
a result of the move to the E-bunk does not contradict
Akhtar’s allegations of harm. The absence of any mention of
harm as a result of the move to the E-bunk fails to establish
that Akhtar did not suffer harm. His allegations of deliberate
indifference to his medical condition were sufficient to satisfy
the pleading requirement. To the extent Appellees contest
Akhtar’s ability to prove harm, that is an issue for summary
judgment or trial, not a Rule 12(b)(6) motion to dismiss.
Because Akhtar’s first amended complaint stated a claim
upon which relief can be granted and neither Magistrate Judge
Hollows nor the district court provided a statement of the
deficiencies before dismissing the first amended complaint
with prejudice, the district court erred in granting the motion
to dismiss.7

7

Nothing in this opinion should be construed as limiting Akhtar’s ability
to seek leave to amend his first amended complaint if he so chooses to do
so upon remand.

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D

In a Rule 28(j) letter, Akhtar relies on Woods v. Carey,
684 F.3d 934 (9th Cir. 2012), to support his contention that he
was not provided with Rand notice at the time Appellees filed
their motion to dismiss. Rand notice requires that a pro se
litigant be provided with fair notice of the requirements for
opposing a motion for summary judgment. Rand v. Rowland,
154 F.3d 952, 960-61 (9th Cir. 1998) (en banc). In Wyatt,
315 F.3d at 1120 n.14, we extended Rand to motions to
dismiss for failure to exhaust administrative remedies.
In Woods, we held that the “notice required under [Rand]
and [Wyatt] must be provided to pro se prisoner plaintiffs at
the time the [Appellees’] motions are filed.” Woods, 684 F.3d
at 936. “The failure to provide adequate Rand notice is a
ground for reversal unless it is clear from the record that there
are no facts that would permit the inmate to prevail.” Id. at
941.
Recently, in Stratton v. Buck, ___F.3d___, No. 10-35656,
2012 WL 4094937 (9th Cir. Sept. 19, 2012) decided while
this matter was pending before us, we held that
“when a district court will consider materials beyond
the pleadings in ruling upon a defendant’s motion to
dismiss for failure to exhaust administrative remedies,
the pro se prisoner plaintiff must receive a notice,
similar to the notice described in Rand. The notice
must explain that: the motion to dismiss for failure to
exhaust administrative remedies is similar to a motion
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for a summary judgment in that the district court will
consider materials beyond the pleadings; the plaintiff
has a “right to file counter-affidavits or other
responsive evidentiary materials”; and the effect of
losing the motion.
Id. at *3 (footnote omitted). Here, the district court granted
Appellees’ motion to dismiss in part for failure to exhaust his
administrative remedies. Akhtar was not provided with Rand
notice at the time after Appellees filed their motion to
dismiss. In addition, the record shows that Akhtar would
likely prevail on the merits of his claims if a trier of fact is
persuaded by his evidence. Thus, the district court also erred
in failing to provide Akhtar with the notice pursuant to Rand.
CONCLUSION
For the foregoing reasons, we are persuaded that the
district court erred in granting Appellees’ motion to dismiss
the first amended complaint.
VACATED AND REMANDED.

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