Michael Smith v. Yates

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK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

MICHAEL LENOIR SMITH, No. 16-15528 Plaintiff-Appellant, D.C. No. 1:07-cv-01547-SRB

v.

MEMORANDUM*

YATES, Warden; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Susan R. Bolton, District Judge, Presiding

Submitted June 11, 2019** Before: CANBY, SILVERMAN, and GRABER, Circuit Judges.

California state prisoner Michael Lenoir Smith appeals pro se from the district court’s summary judgment in 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. Guatay Christian Fellowship v. County of

*

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).

San Diego, 670 F.3d 957, 970 (9th Cir. 2011) (cross-motions for summary judgment); 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 granted summary judgment on the basis of qualified immunity because it would not have been clear to every reasonable official that housing Smith 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, 1229-30 (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).

AFFIRMED.