Carlos Ortega v. Mark Ritchie ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ARMANDO ORTEGA, No. 17-15497
Plaintiff-Appellant, D.C. No. 4:15-cv-04876-HSG
v.
MEMORANDUM*
MARK RITCHIE, M.D.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Carlos Armando Ortega appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his
serious medical needs while he was a pretrial detainee at Santa Clara County Main
Jail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Ortega’s claims
against defendants Grewal, Khan, Purdy, Ritchie, and Varsales because, under any
potentially applicable standard, Ortega failed to raise a genuine dispute of material
fact as to whether these defendants were deliberately indifferent in their treatment
of his mental health conditions. See id. at 1057-58 (9th Cir. 2004) (prison officials
act with deliberate indifference only if they know of and disregard an excessive
risk to inmate health; a difference of opinion between a prisoner and medical
authorities regarding the appropriate course of treatment, negligence, or medical
malpractice do not amount to deliberate indifference); Lolli v. County of Orange,
351 F.3d 410, 418-19 (9th Cir. 2003) (pretrial detainee’s claim of medical
deliberate indifference is analyzed under the Fourteenth Amendment Due Process
Clause rather than under the Eighth Amendment, but same standards apply); cf.
Castro v. County of Los Angeles, 833 F.3d 1060, 1067-71 (9th Cir. 2016) (en banc)
(setting forth elements of Fourteenth Amendment failure-to-protect claim by
pretrial detainee).
The district court properly granted summary judgment on Ortega’s claims
against defendants Meade and Ferry because these defendants are absolutely
immune from a suit for damages with regard to their testimony in another action.
See Paine v. City of Lompoc, 265 F.3d 975, 980 (9th Cir. 2001) (“Witnesses,
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including police witnesses, are accorded absolute immunity from liability for their
testimony in judicial proceedings.”).
The district court properly granted summary judgment on Ortega’s
supervisory liability claims against defendants Flores, Sepulveda, and Smith
because Ortega failed to raise a triable dispute as to whether there was any
underlying constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1207-08
(9th Cir. 2011) (elements for supervisory liability under § 1983); Toguchi, 391
F.3d at 1057-58; Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (there is no
supervisory liability if there is no underlying constitutional violation).
To the extent that Ortega contends he alleged any claims against the City of
San Jose or County of Santa Clara, the district court properly dismissed the claims
because Ortega failed to allege facts sufficient to state a plausible claim for
municipal liability. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are to be liberally construed, a plaintiff must still
present factual allegations sufficient to state a plausible claim for relief); Plumeau
v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (setting
forth requirements for municipal liability under § 1983); Scott v. Henrich, 39 F.3d
912, 916 (9th Cir. 1994) (there is no municipal liability if there is no underlying
constitutional violation).
We reject as unsupported by the record Ortega’s contention that the district
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court improperly construed his motions for summary judgment as oppositions to
defendants’ motions for summary judgment.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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