Roy McCarter v. County of San Bernardino

FILED
NOT FOR PUBLICATION MAR 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROY RUSCH MCCARTER, No. 09-55363
Plaintiff - Appellant, D.C. No. 2:01-cv-08352-VAP-
FMO
v.
COUNTY OF SAN BERNARDINO; et MEMORANDUM *
al.,
Defendants - Appellees,
and
DEPUTY ROTH; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
*
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).
Roy Rusch McCarter, a former California state prisoner, appeals pro se from
the district court’s partial summary judgment in his 42 U.S.C. § 1983 action
alleging excessive force and challenging the conditions of his confinement. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni,
31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam), and we affirm.
The district court properly granted summary judgment on McCarter’s
excessive force claims against San Bernardino County and the City of Rancho
Cucamonga because he failed to raise a genuine issue of material fact as to whether
a specific policy or custom was “the moving force” behind the alleged
unconstitutional conduct. Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1193-94 (9th
Cir. 2002). The district court properly granted summary judgment on McCarter’s
excessive force claims against defendants Penrod, Hernandez, and Ripley because
he failed to raise a triable issue as to whether these defendants personally
participated in the alleged assault. See Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989) (“A supervisor is only liable for constitutional violations of his
subordinates if the supervisor participated in or directed the violations, or knew of
the violations and failed to act to prevent them.”).
The district court properly granted summary judgement on McCarter’s
deliberate indifference claims because he failed to raise a triable issue as to
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whether the defendants knew of and disregarded an excessive risk to his health and
safety, where McCarter had the opportunity to be seen by a private dentist and was
treated by a facility dentist. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(“deliberate indifference” is evidenced only when “the official knows of and
disregards an excessive risk to inmate health or safety”); Sanchez v. Vild, 891 F.2d
240, 242 (9th Cir. 1989) (difference of opinion concerning proper treatment does
not constitute deliberate indifference); see also Jones v. Johnson, 781 F.2d 769,
771 (9th Cir. 1986) (“[T]he eighth amendment guarantees provide a minimum
standard of care for determining [the plaintiff’s] rights as a pretrial detainee,
including his right to medical care.”).
The district court properly granted summary judgment on McCarter’s claims
regarding unsanitary conditions because he failed to raise a triable issue as to
whether he suffered any physical injury. See 42 U.S.C. § 1997e(e); Anderson v.
Cnty. of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995) (indicating lack of sanitation
must be severe and prolonged to constitute a Fourteenth Amendment violation).
McCarter waived his claims concerning two 1998 assaults when he failed to
raise the claims in his third amended complaint. See King v. Atiyeh, 814 F.2d 565,
567 (9th Cir. 1987) (“All causes of action alleged in an original complaint which
are not alleged in an amended complaint are waived.”).
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We do not consider claims not adequately raised in McCarter’s opening
brief. See Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d
1211, 1217 (9th Cir. 1997).
McCarter’s remaining contentions are unpersuasive.
We deny McCarter’s motion to supplement the record.
AFFIRMED.
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