Steve Mahoney v. Kitsap County Jail ( 2012 )

FILED
NOT FOR PUBLICATION JUL 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STEVE ALAN MAHONEY, No. 11-35169
Plaintiff - Appellant, D.C. No. 3:10-cv-05140-RBL
v.
MEMORANDUM *
KITSAP COUNTY JAIL; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Former Washington state prisoner Steve Alan Mahoney appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo a judgment on the pleadings under Fed. R. Civ.
P. 12(c) and dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We affirm.
The district court properly dismissed with prejudice the claims against
defendant Johnson because Mahoney’s factual allegations and the attachments to
the operative complaint show that Johnson did not act with deliberate indifference
to Mahoney’s medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th
Cir. 2004) (a prison official acts with deliberate indifference only if he or she
knows of and disregards an excessive risk to the prisoner’s health and safety;
negligence and a mere difference in medical opinion are insufficient to establish
deliberate indifference); Nat’l Ass’n. for the Advancement of Psychoanalysis v.
Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (explaining “we may
consider facts contained in documents attached to the complaint” in determining
whether the complaint states a claim for relief).
The district court properly granted Kitsap County Jail’s motion to dismiss
with prejudice because the jail is not a legal entity subject to suit under § 1983.
See Wash. Rev. Code § 4.96.010(2). The district court did not abuse its discretion
in denying Mahoney’s motion to amend the complaint to substitute Kitsap County
as the municipal defendant because such an amendment would be futile. See
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Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (setting forth standard of
review and noting that “[f]utility alone can justify the denial of a motion to amend”
(citation and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing without
prejudice the claims against defendants Luce and Jeuuk because Mahoney failed to
effectuate service in a timely manner. See Walker v. Sumner, 14 F.3d 1415, 1422
(9th Cir. 1994) (setting forth standard of review and holding that an incarcerated
pro se plaintiff proceeding in forma pauperis must provide the marshal with
sufficient information necessary for service), abrogated on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995); Benny v. Pipes, 799 F.2d 489, 492 (9th
Cir. 1986) (“A federal court is without personal jurisdiction over a defendant
unless the defendant has been served in accordance with Fed. R. Civ. P. 4.”).
Mahoney’s remaining contentions are unpersuasive.
AFFIRMED.
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