Gary Sargent v. Paul Simoneta

FILED
NOT FOR PUBLICATION SEP 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY L. SARGENT, No. 11-17371
Plaintiff - Appellant, D.C. No. 2:10-cv-01420-CMK
and
MEMORANDUM *
DANNY F. ATTERBURY,
Plaintiff,
v.
PAUL SIMONETA, Shasta County Adult
Protective Services; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Craig M. Kellison, Magistrate Judge, Presiding **
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
Submitted September 10, 2012 ***
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Gary L. Sargent appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging that defendants violated his constitutional
rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Patel v.
Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011), and we affirm.
The district court properly granted summary judgment on Sargent’s claims
because defendants did not have a duty under the Fourteenth Amendment to assist
Sargent or protect him from the acts of third parties. See id. at 971-72; see also
Campbell v. Wash. Dep’t of Soc. & Health Servs., 671 F.3d 837, 842-43 (9th Cir.
2011) (neither state’s knowledge of an individual’s situation nor its expressions of
intent to help give rise to a duty); Morgan v. Gonzales, 495 F.3d 1084, 1092-93
(9th Cir. 2007) (Fourteenth Amendment typically does not impose duty on state to
protect individuals from third parties).
We are not persuaded by Sargent’s contention that the district court violated
his rights by holding an improper ex parte hearing because Sargent was provided
notice of the hearing through defendants’ motion for summary judgment, which
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 11-17371
listed the date, time, and location for the hearing.
Sargent’s contention that he was prejudiced by the district court’s purported
failure to provide him with “extra care” warranted by his pro se status is
unpersuasive. See Rand v. Rowland, 154 F.3d 952, 957-58 (9th Cir. 1998) (en
banc) (reaffirming the principle that special notice requirements do not apply to
non-prisoner pro se plaintiffs); Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251,
1257 (9th Cir. 1997) (rule of liberal interpretation for pro se litigants may not be
used to supply missing elements of a claim).
The district court did not abuse its discretion in denying Sargent leave to
amend because the proposed amended complaint would not have cured the
deficiencies. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010)
(setting forth standard of review and noting that leave to amend may be denied if
amendment would be futile).
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)
(per curiam).
AFFIRMED.
3 11-17371