Gregory Brown v. Bernard Warner

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY TYREE BROWN, No. 15-35949
Plaintiff-Appellant, D.C. No. 2:13-cv-00130-RMP
v.
MEMORANDUM*
BERNARD WARNER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted February 27, 2018 **
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Washington state prisoner Gregory Tyree Brown appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe
v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (failure to state a claim under Fed. R.
*
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).
Civ. P. 12(b)(6)); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004)
(summary judgment). We may affirm on any basis supported by the record, Enlow
v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004), and we affirm.
The district court properly dismissed Brown’s “denial of self-defense”
claims, retaliation claim based on his complaint of excessive force, and due
process claims because Brown failed to allege facts sufficient to state a plausible
claim. See Hebbe, 627 F.3d at 341–42 (although pro se pleadings are liberally
construed, a plaintiff must still present factual allegations sufficient to state a
plausible claim for relief); see also Sandin v. Conner, 515 U.S. 472, 486 (1995)
(“[S]egregated confinement [does] not present the type of atypical, significant
deprivation in which a State might conceivably create a liberty interest.”);
Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth elements of
retaliation claim in prisoner context).
Dismissal of Brown’s retaliation claims based on Brown’s decision not to
press charges or testify was proper because Brown failed to allege facts sufficient
to state a plausible claim. See Brodheim, 584 F.3d at 1269.
The district court properly granted summary judgment on Brown’s failure-
to-protect claim because Brown failed to raise a genuine dispute of material fact as
to whether defendant Westfall, Shodahl, or Cluever were deliberately indifferent to
his safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison official
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cannot be found liable under the Eighth Amendment “unless the official knows of
and disregards an excessive risk to inmate health or safety”); Cortez v. Skol, 776
F.3d 1046, 1050 (9th Cir. 2015) (discussing requirements for failure-to-protect
claim).
The district court correctly granted summary judgment against Brown with
respect to his excessive force claims against defendants Shodahl and Cluever.
Relying in part on video evidence of this incident, the district court found that
Brown failed to raise any genuine disputes of material fact. Viewing the evidence,
including the video recording of the incident, in the light most favorable to Brown,
he failed to raise a triable dispute as to whether Shodahl and Cluever maliciously
and sadistically used force against him. See Hudson v. McMillian, 503 U.S. 1, 7
(1992) (holding that “the core judicial inquiry” in resolving an Eighth Amendment
excessive force claim is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm”);
Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (a court reviewing a
summary judgment motion must “assume the truth of the evidence set forth by the
nonmoving party”).
In light of our disposition of Brown’s excessive force claims, any
amendment of Brown’s complaint to allege an excessive force claim against
Officer Flack would be futile. Accordingly, we affirm the denial of Brown’s
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motion for leave to file a third amended complaint. See United States ex rel. Lee v.
Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (denial of leave to amend
reviewed for an abuse of discretion); Carvalho v. Equifax Info. Servs., LLC, 629
F.3d 876, 893 (9th Cir. 2010) (futility of amendment reviewed de novo).
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);
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in pro se appellant’s opening brief are waived).
AFFIRMED.
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