Kevin Bartholomew v. A. Muhammad , 599 F. App'x 313 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN BARTHOLOMEW, No. 13-17453
Plaintiff - Appellant, D.C. No. 2:09-cv-00882-JAM-
CMK
v.
A. F. MUHAMMAD; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
California state prisoner Kevin Bartholomew appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with his placement in contraband watch. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Keenan v. Hall, 83 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1083, 1092 (9th Cir. 1996), and we affirm.
The district court properly granted summary judgment on Bartholomew’s
Fourth Amendment claim because Bartholomew failed to raise a genuine dispute
of material fact as to whether the strip search was conducted in an unreasonable
manner or performed for reasons other than institutional security. See Bull v. City
& County of San Francisco, 595 F.3d 964, 971-72 (9th Cir. 2010) (en banc)
(reasonableness of a search is evaluated in the light of the prison’s primary
objective of institutional security).
The district court properly granted summary judgment on Bartholomew’s
Eighth Amendment claim concerning defendants’ conduct during the search. See
Keenan, 83 F.3d at 1092 (“[V]erbal harassment generally does not violate the
Eighth Amendment.”).
The district court properly granted summary judgment on Bartholomew’s
Eighth Amendment conditions-of-confinement claim against defendant Webster
because Bartholomew failed to raise a genuine dispute of material fact as to
whether the failure to provide him with soap, a shower, or a blanket on one day
denied him the “minimal civilized measure of life’s necessities.” Id. at 1089
(citations and internal quotation marks omitted); see also Anderson v. County of
Kern, 45 F.3d 1310, 1314-15 (9th Cir. 1995) (indicating that lack of sanitation
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must be severe and prolonged to constitute an Eighth Amendment violation).
The district court properly granted summary judgment as to Bartholomew’s
Eighth Amendment conditions-of-confinement claim against other defendants
because Bartholomew failed to raise a genuine dispute of material fact as to
whether he suffered extreme deprivations constituting an Eighth Amendment
violation. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official
cannot be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health[.]”); Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(“[E]xtreme deprivations are required to make out a conditions-of-confinement
claim.”).
The district court properly granted summary judgment as to Bartholomew’s
Eighth Amendment deliberate indifference claim against defendant Shchebenko
because Bartholomew failed to raise a genuine dispute of material fact as to
whether defendant knowingly disregarded an excessive risk to his health or safety
during contraband watch. See Farmer, 511 U.S. at 837 (a prison official is
deliberately indifferent only if he or she “knows of and disregards an excessive risk
to inmate health or safety”).
Contrary to Bartholomew’s contentions, any error concerning the failure to
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provide Bartholomew with contemporaneous notice of the requirements to defeat
summary judgment was harmless. See Labatad v. Corr. Corp. of Am., 714 F.3d
1155, 1159-60 (9th Cir. 2013) (per curiam) (a district court’s failure to provide
contemporaneous Rand notice was harmless where the record, objectively viewed,
showed that the prisoner knew and understood the information in the Rand notice).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and 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.
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