Calvin Calvin v. Orange County Sheriff Dept. ( 2016 )

FILED
NOT FOR PUBLICATION NOV 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALVIN J. CALVIN, No. 15-55430
Petitioner-Appellant, D.C. No. 8:13-cv-01393-GHK-
CW
v.
ORANGE COUNTY SHERIFF MEMORANDUM*
DEPARTMENT; CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Calvin J. Calvin, an inmate at Orange County Jail, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
*
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).
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)
(dismissal under Fed. R. Civ. P. 12(b)(6)); Resnick v. Hayes, 213 F.3d 443, 447
(9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Calvin’s deliberate indifference claim
because Calvin failed to allege facts sufficient to show that defendants knew of and
disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,
1057-60 (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;
negligence and a mere difference in medical opinion are insufficient to establish
deliberate indifference).
To the extent Calvin sought relief under the Americans with Disabilities Act
(“ADA”), the district court properly dismissed this claim because Calvin failed to
allege that he was qualified to participate in the state-run fire camp program, and
was excluded or otherwise discriminated against because of his disability. See
O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (elements of
ADA claim).
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
2 15-55430
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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