McClure v. Citrenbaum

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2025
• Docket: 24-1141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN PATRICK McCLURE, No. 24-1141 D.C. No. 3:23-cv-08133-JAT-ASB Plaintiff - Appellant,

v. MEMORANDUM* LEWIS CITRENBAUM, named as Yavapai County Attorney; ERIC JOSEPH CREMONA; UNKNOWN PARTY, named as Eric Cremona’s Roommate; UNKNOWN HOHRIEN, named as Detective P.V P.D; UNKNOWN GRANT; ELIZABETH HILL, named as Dr.; ST. JOSEPH HOSPITAL, I.C.U,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted March 17, 2025**

Before: CANBY, R. NELSON, and FORREST, Circuit Judges.

* 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). John Patrick McClure appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging claims related to his stabbing and

subsequent medical treatment. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v.

Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We affirm.

The district court properly dismissed McClure’s claims against defendants

Hill and St. Joseph Hospital, I.C.U. because McClure failed to allege facts

sufficient to show that these defendants acted under color of state law. See

Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)

(elements of § 1983 action); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991)

(explaining state action requirement and that private parties are generally not state

actors). To the extent McClure alleged a state law medical malpractice claim

against these defendants, dismissal of the claim was proper because McClure failed

to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d

338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed

liberally, a plaintiff must present factual allegations sufficient to state a plausible

claim for relief).

The district court properly dismissed McClure’s claims against defendants

Hohrien and Grant because McClure failed to allege facts sufficient to show that

these defendants violated any federally protected right by allegedly failing to

2 24-1141 investigate the underlying incident or pursue criminal charges. See Gini v. Las

Vegas Metropolitan Police Department, 40 F.3d 1041, 1045 (9th Cir. 1994) (“The

police have no affirmative obligation to investigate a crime in a particular way or

to protect one citizen from another even when one citizen deprives the other of

liberty [or] property.”).

We reject as unsupported by the record McClure’s contention that the

district court dismissed his case because he had previously filed a complaint

against the district judge.

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

in the opening brief, including whether the district court erred in deciding

McClure’s motions, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); Acosta-

Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues not supported by

argument in pro se appellant’s opening brief are deemed abandoned).

McClure’s motion for appointment of counsel (Docket Entry No. 6) and

motion for certified mail (Docket Entry No. 7) are denied.

AFFIRMED.

3 24-1141