Jeffrey Franklin v. George Giurbino

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 17-15407
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFREY ANTHONY FRANKLIN, No. 17-15407

Plaintiff-Appellant, D.C. No. 4:15-cv-04755-YGR

v. MEMORANDUM* GEORGE GIURBINO; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

California state prisoner Jeffrey Anthony Franklin appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)

* 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). (district court’s dismissal under Fed. R. Civ. P. 12(b)(6)); May v. Baldwin, 109

F.3d 557, 560-61 (9th Cir. 1997) (district court’s decision on qualified immunity).

We affirm.

The district court properly dismissed Franklin’s action because it would not

have been clear to every reasonable official that relying on a nurse’s judgment that

there was no medical reason prohibiting Franklin’s prison transfer was unlawful

under the circumstances. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)

(explaining two-part test for qualified immunity); Peralta v. Dillard, 744 F.3d

1076, 1086 (9th Cir. 2014) (in order to be liable for deliberate indifference, “the

official must be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference”

(citation and internal quotation marks omitted)).

Franklin’s contentions regarding the district court’s failure to provide him

with an opportunity to conduct discovery are unpersuasive.

We do not consider 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.