elements of an Eighth Amendment claim
How later courts described this case
- elements of an Eighth Amendment claim
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION JUN 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLARENCE LEON DEWS No. 13-16282
Plaintiff - Appellant, D.C. No. 1:12-cv-00278-AWI-
SKO
v.
EDMUND BROWN, et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted June 12, 2014**
Before: McKEOWN, WARDLAW, and M. SMITH, Circuit Judges.
California state prisoner Clarence Leon Dews appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth
and Fourteenth Amendment violations in connection with his transfer and
subsequent denial of surgery. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo a dismissal for failure to state a claim under 28 U.S.C. §§ 1915A
and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.
The district court properly dismissed Dews’s Eighth Amendment claim
because Dews failed to allege facts showing that defendants knew that Dews faced
substantial risk of serious harm to his health and disregarded that risk by failing to
take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 834
(1994) (elements of an Eighth Amendment claim).
The district court properly dismissed Dews’s Fourteenth Amendment claims
because Dews failed to allege facts showing that defendants deprived him of a
recognized property or liberty interest, see Bd. of Regents v. Roth, 408 U.S. 564,
569-71 (1972), intentionally treated him differently from others who were similarly
situated without a rational basis, see N. Pacifica LLC v. City of Pacifica, 526 F.3d
478, 486 (9th Cir. 2008), or intentionally discriminated against him on the basis of
his membership in a protected class see Thornton v. City of St. Helens, 425 F.3d
1158, 1166 (9th Cir. 2005).
The district court properly dismissed Dews’s conspiracy claim because
Dews failed to allege an “underlying constitutional violation.” Lacey v. Maricopa
County., 693 F.3d 896, 935 (9th Cir. 2012) (en banc).
2 13-16282
We do not consider issues raised for the first time on appeal. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Dews’s motion to proceed in forma pauperis, filed on April 21, 2014, is
denied as unnecessary.
AFFIRMED.
3 13-16282