Kareem Howell v. C. Tran

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 25 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREEM HOWELL, AKA Kareem J. No. 18-15494

Howell,

D.C. No. 3:15-cv-05377-SI

Plaintiff-Appellant,

v. MEMORANDUM*

C. TRAN, Correctional Officer; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

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.

*

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).

§ 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

2 18-15494

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.

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