Peter Honesto v. Gavin Newsom

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 18-16497
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER J. HONESTO, No. 18-16497

Plaintiff-Appellant, D.C. No. 1:17-cv-00467-LJO-EPG

v. MEMORANDUM** GAVIN NEWSOM; et al.,*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted June 11, 2019***

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

California state prisoner Peter J. Honesto appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal claims.

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

* Gavin Newsom has been substituted for his predecessor, Edmund G. Brown, Jr., as Governor of California under Fed. R. App. P. 43(c)(2). ** 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). Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 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 Honesto’s conditions-of-confinement

claim against defendants Schwarzenegger, Hartley, and Adams in their individual

capacities because it would not have been clear to every reasonable official that

housing Honesto 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”).

The district court properly dismissed Honesto’s claim under Title II of the

Americans with Disabilities Act because Honesto failed to allege facts sufficient to

state a plausible claim for relief. See Simmons v. Navajo County, Ariz., 609 F.3d

1011, 1021 (9th Cir. 2010) (elements of a claim under Title II); see also 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).

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).

2 AFFIRMED.