U.S. Court of Appeals for the Ninth Circuit, 2015

Steven Wilhelm v. Jeannie Woodford

Steven Wilhelm v. Jeannie Woodford
U.S. Court of Appeals for the Ninth Circuit · Decided August 4, 2015 · Bea, Canby, Murguia
611 F. App'x 462

Steven Wilhelm v. Jeannie Woodford

Opinion

MEMORANDUM **

California state prisoner Steven Hairl Wilhelm appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference to his health and safety due to his exposure to environmental tobacco smoke' while housed in prison. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (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)). We affirm.

The district court properly dismissed Wilhelm’s action because Wilhelm failed to allege facts sufficient to show that defendant Woodford knew of and disregarded a substantial risk of serious harm to Wilhelm. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health[.]”); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, plaintiff must allege facts sufficient to state a plausible claim).

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) (per curiam).

Wilhelm’s motion for leave to file an amended complaint is denied.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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