Kenneth Thunderbird v. State of Oregon

FILED
NOT FOR PUBLICATION APR 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH THUNDERBIRD, No. 12-35588
Plaintiff - Appellant, D.C. No. 3:08-cv-01404-PK
v.
MEMORANDUM*
STATE OF OREGON, Employees,
Agents, Agencies; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Submitted April 16, 2014**
Before: GOULD, BERZON, and BEA, Circuit Judges.
Oregon state prisoner Kenneth Thunderbird appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to
his serious medical needs and violations under the Americans with Disabilities Act
*
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).
(“ADA”) and the Rehabilitation Act. We have jurisdiction under 28 U.S.C.
§ 1291. We review Thunderbird’s claims de novo. Sapp v. Kimbrell, 623 F.3d
813, 821 (9th Cir. 2010) (failure to exhaust administrative remedies); Douglas v.
Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009) (failure to state a claim); Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment). We affirm.
The district court correctly dismissed as time-barred Thunderbird’s claims
stemming from incidents that occurred more than two years before Thunderbird
filed his action. See Or. Rev. Stat. § 12.110(1) (two-year statute of limitations for
personal injury claims); Noelle, 567 F.3d at 1109 (for § 1983 claims, courts apply
forum state’s statute of limitations for personal injury claims); Pickern v. Holiday
Quality Foods Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002) (for ADA claims,
courts apply the statute of limitations for the most analogous state law); Douglas v.
Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 n.11 (9th Cir. 2001) (same for
Rehabilitation Act claims); Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001)
(discussing continuing violation doctrine).
The district court properly dismissed Thunderbird’s § 1983 claims for
damages against state agencies or state officials acting in their official capacities
because those claims are barred by the Eleventh Amendment. See Flint v.
Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (Eleventh Amendment bars
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§ 1983 damages claims against state officials in their official capacity); Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989) (Eleventh Amendment immunity applies
to state agencies, including the department of prisons).
The district court did not err in dismissing Thunderbird’s claims alleging
discrimination regarding his tinted eyeglasses and insulin because Thunderbird did
not exhaust his administrative remedies prior to filing suit. See Woodford v. Ngo,
548 U.S. 81, 93-95 (2006) (holding that “proper exhaustion” is mandatory and
requires adherence to administrative procedural rules).
The district court properly dismissed Thunderbird’s claim for violation of
his religious rights because Thunderbird did not allege facts in the operative
second amended complaint showing that defendants’ actions substantially
burdened his ability to practice his religion. See Shakur v. Schriro, 514 F.3d 878,
884-85 (9th Cir. 2008) (First Amendment’s Free Exercise Clause is only
implicated when a prison practice burdens a prisoner’s sincerely-held religious
beliefs); Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005) (under the
Religious Land Use and Institutionalized Persons Act, prisoner must show that the
challenged policy imposes a substantial burden on the exercise of his religious
beliefs).
The district court properly granted summary judgment on Thunderbird’s
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deliberate indifference claims because Thunderbird did not raise a genuine dispute
of material fact as to whether defendant Dr. Gulick consciously disregarded a
serious risk of harm to Thunderbird’s health by (1) adjusting his medications, (2)
denying his request to wear sweat pants, or (3) removing his authorization for
tinted eyeglasses. See Toguchi, 391 F.3d at 1057-58 (discussing deliberate
indifference standard and noting that a difference in opinion concerning the
appropriate course of treatment does not amount to deliberate indifference).
Thunderbird’s contentions regarding discovery and service are unpersuasive.
We do not consider Thunderbird’s remaining contentions because they were
not specifically raised and argued in his opening brief. See Padgett v. Wright, 587
F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We deny Thunderbird’s November 12, 2013 motion for joinder of parties
and claims.
AFFIRMED.
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