Darryl Burghardt v. L. Borges ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL BURGHARDT, No. 21-15736
Plaintiff-Appellant, D.C. No. 1:17-cv-01433-AWI-GSA
v.
MEMORANDUM*
L. BORGES; J. RENTERIA; J.
GUERRERO; K. CRIBBS; D. GOREE, Jr.;
R. BROOMFIELD; F. MONTOYA; M.
SEXTON; GONZALES; D. OSUMA; A. V.
JOHNSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
California state prisoner Darryl Burghardt appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging excessive
*
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).
force and deliberate indifference to his serious medical needs. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii));
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 Burghardt’s Eighth Amendment claims
because Burghardt failed to allege facts sufficient to show that defendants
physically engaged with and used pepper spray on him “maliciously and
sadistically for the very purpose of causing harm” or knew of and disregarded an
excessive risk to his health and safety in providing medical treatment and
decontamination procedures. See Clement v. Gomez, 298 F.3d 898, 903-904 (9th
Cir. 2002) (citation omitted) (discussing Eighth Amendment excessive force and
medical deliberate indifference claims); see also Hebbe v. Pliler, 627 F.3d 338,
341–42 (9th Cir. 2010) (though pro se pleadings are to be liberally construed, a
plaintiff must present factual allegations sufficient to state a plausible claim for
relief).
The district court did not abuse its discretion in dismissing without prejudice
Burghardt’s claims that did not arise “out of the same transaction, occurrence, or
series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2) (joinder of parties);
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see also Fed. R. Civ. P. 18(a) (joinder of claims); United States v. Bowen, 172 F.3d
682, 688 (9th Cir. 1999) (standard of review).
The district court did not abuse its discretion in dismissing the second
amended complaint without further leave to amend after notifying Burghardt of the
deficiencies in his pleadings, advising him how to correct them, and affording him
multiple opportunities to amend his complaint. See Nguyen v. Endologix, Inc., 962
F.3d 405, 420 (9th Cir. 2020) (“[W]here the plaintiff has previously been granted
leave to amend and has subsequently failed to add the requisite particularity to its
claims, the district court’s discretion to deny leave to amend is particularly broad.”
(citation omitted)).
We reject as meritless Burghardt’s contention that the district court should
have reviewed a separate complaint containing unrelated claims that Burghardt
filed alongside his first amended complaint.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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