Kenneth Hill v. Scott Kernan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH HILL, No. 19-16759
Plaintiff-Appellant, D.C. No. 2:18-cv-01108-TLN-CKD
and
MEMORANDUM*
SHAWN KEVIN FROST, Sr.; et al.,
Plaintiffs,
v.
SCOTT KERNAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
California state prisoner Kenneth Hill appeals pro se from the district court’s
*
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).
judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to
his serious medical needs and safety. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C.
§ 1915A(a). Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). We affirm.
The district court properly dismissed Hill’s action because Hill failed to
allege facts sufficient to show that defendants knew of and disregarded a
substantial risk to his health or safety. See Farmer v. Brennan, 511 U.S. 825, 834-
37 (1994); Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (“Vague and
conclusory allegations of official participation in civil rights violations are not
sufficient.” (citations omitted)).
The district court did not abuse its discretion by denying Hill’s motions for a
preliminary injunction because Hill failed to demonstrate a likelihood of success
on the merits. See Jackson v. City & County of San Francisco, 746 F.3d 953, 958
(9th Cir. 2014) (setting forth standard of review and requirements for a preliminary
injunction).
The district court did not abuse its discretion by denying Hill’s motion for
class certification because he did not establish numerosity, commonality, or
typicality. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (plaintiff
seeking class certification must affirmatively demonstrate their compliance with
Rule 23); Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001)
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(standard of review).
The district court did not abuse its discretion in denying Hill’s motion for
appointment of counsel because Hill was able to articulate his claims and was
unlikely to succeed on the merits. See Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009) (setting forth standard of review and discussing factors to consider in
ruling on a motion to appoint counsel).
We reject as meritless Hill’s contention that the district court erred by
striking his proposed first amended complaint.
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
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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