Flournoy v. Pollard

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2026
• Docket: 24-4953
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN FLOURNOY, No. 24-4953 D.C. No. 3:21-cv-01767-RBM-DTF Plaintiff - Appellant,

v. MEMORANDUM*

M. POLLARD, Warden, Richard J. Donovan Correctional Facility; C. KIES, Correctional Officer,

Defendants - Appellees,

and

KILOUGH, Mr. MIRANDA, Lieutenant, RALPH DIAZ, Former CDCR Secretary, HOWARD E. MOSELEY, Associate Director of Appeals, Richard J. Donovan Correctional Facility, DOES, 1- 15; Captain,

Defendants.

Appeal from the United States District Court for the Southern District of California Ruth Bermudez Montenegro, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 16, 2026**

Before: SILVERMAN, NGUYEN, and HURWITZ, Circuit Judges.

California state prisoner Benjamin Flournoy appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his health and safety. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We

affirm.

The district court properly granted summary judgment to defendants Pollard

and Kies because Flournoy failed to raise a genuine dispute of material fact as to

whether they were deliberately indifferent to Flournoy’s risk of contracting

COVID-19. See Farmer v. Brennan, 511 U.S. 825, 837, 844 (1994) (a prison

official cannot be held liable for deliberate indifference “unless the official knows

of and disregards an excessive risk to inmate health or safety”; officials may not be

held liable “if they responded reasonably to the risk, even if the harm ultimately

was not averted”).

We do not consider arguments raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 24-4953