Opinion
No. 18-15494
04-25-2019
KAREEM HOWELL, AKA Kareem J. Howell, Plaintiff-Appellant, v. C. TRAN, Correctional Officer; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 3:15-cv-05377-SI MEMORANDUM Appeal from the United States District Court for the Northern District of California
Susan Illston, District Judge, Presiding Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Kareem Howell, AKA Kareem J. Howell, a California state prisoner, appeals pro se from the district court's summary judgment in his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference claims arising out of his three-month stay in Santa Clara County jail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Glenn v. Washington County, 673 F.3d 864, 870 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment for defendants Tran and Mahaffey on Howell's deliberate indifference claims arising out of their decisions to deny or delay mental health treatment on September 1 and 14, 2015 because Howell failed to raise a genuine dispute of material fact as to whether the denial or delay of mental health treatment on either of those days resulted in any harm. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (a prisoner alleging deliberate indifference based on delay in treatment must show that the delay caused significant harm); see also Cano v. Taylor, 739 F.3d 1214, 1217-18 (9th Cir. 2014) (no evidence of deliberate indifference where there were extensive medical records documenting the defendant's treatment by prison mental health professionals).
The district court properly granted summary judgment for defendant Tran on Howell's deliberate indifference claim arising out of the cell-covering incident on September 14, 2015 on the basis of qualified immunity because it was not clearly established that Tran's conduct violated the Eighth Amendment. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (discussing qualified immunity and noting that a right is clearly established only if "every reasonable official would have understood that what he is doing violates that right" (citation and internal quotation marks omitted)).
The district court properly granted summary judgment for Mahaffey on Howell's excessive force claim because Howell failed to raise a genuine dispute of material fact as to whether Mahaffey pepper-sprayed or punched him during a cell extraction. See Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (explaining framework for analyzing an excessive force claim); see also Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
We reject as meritless Howell's contentions that the district court improperly gave defendants legal advice, should not have permitted defendants to file a second summary judgment motion, and should not have ordered defendants to submit Howell's medical records.
We do not consider arguments raised for the first time on appeal, or 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).
AFFIRMED.