Luis Duran v. Gail Lewis

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 17-17057
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS DURAN, No. 17-17057

Plaintiff-Appellant, D.C. No. 1:16-cv-00468-AWI-SAB

v. MEMORANDUM* GAIL LEWIS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Submitted June 11, 2019**

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

California state prisoner Luis Duran appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference.

We have jurisdiction under 28 U.S.C § 1291. We review de novo. Wilhelm v.

Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal 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). § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)

(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

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

have been clear to every reasonable official that housing Duran in prisons in the

Central Valley, where Valley Fever is endemic, was unlawful under the

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

part test for qualified immunity); Hines v. Youseff, 914 F.3d 1218, 1230-35 (9th

Cir. 2019) (existing Valley Fever cases did not clearly establish a “right to be free

from heightened exposure to Valley Fever spores”).

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).

Duran’s motion to appoint counsel (Docket Entry No. 9) is denied.

AFFIRMED.