Douglas Derello, Jr. v. Jackson

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2019
• Docket: 18-16582
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DOUGLAS WAYNE DERELLO, Jr., a.k.a. No. 18-16582 Douglas Wayne Derello, D.C. No. 2:17-cv-01266-DGC-JFM Plaintiff-Appellant,

v. MEMORANDUM*

JACKSON, Unknown, named as CO II Jackson,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Douglas Wayne Derello, Jr. appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging a violation of his Eighth

Amendment right to safe prison conditions. 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).

18-16582 § 1291. We review de novo. Guatay Christian Fellowship v. County of San

Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment for Jackson because

Derello failed to raise a genuine dispute of material fact as to whether Jackson was

subjectively aware of a substantial risk of harm to Derello. See Farmer v.

Brennan, 511 U.S. 825, 829 (1994) (concluding that a deliberate indifference claim

“require[s] a showing that the official was subjectively aware of the risk”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, including Derello’s allegations regarding his typewriter or the

destruction of unspecified property. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144

(9th Cir. 1992) (concluding pro se appellant abandoned issues not argued in his

opening brief). Nor do we consider those arguments and allegations raised for the

first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Derello’s Motion Averring Retaliation, which exclusively raises allegations

unrelated to this appeal and directed toward individuals other than Jackson, is

denied.

AFFIRMED.

2 18-16582