Michael Smith v. Yates

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 16-15528
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

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.