Darius Hathaway v. J. Vandever

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARIUS JOSHUA HATHAWAY, AKA Lil No. 18-35976
Havoc, AKA Quick,
D.C. No. 2:18-cv-01413-SI
Plaintiff-Appellant,
v. MEMORANDUM*
J. VANDEVER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted July 14, 2020**
Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.
Oregon state prisoner Darius Joshua Hathaway appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a failure-
to-protect claim. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal for
*
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).
failure to state a claim under 28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012) (dismissal for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii)). We affirm.
The district court properly dismissed Hathaway’s action because Hathaway
failed to allege facts sufficient to show that defendants were deliberately
indifferent to a substantial risk of harm to Hathaway during his altercation with
another inmate. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (to state an
Eighth Amendment failure-to-protect claim, an inmate must allege that the
deprivation was “objectively, sufficiently serious” and defendants were
deliberately indifferent to a substantial risk of harm); see also id. at 837 (a prison
official is deliberately indifferent if the prison official “knows of and disregards an
excessive risk to inmate health or safety”).
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.
2 18-35976