Donny Steward v. Ngozi Igbinosa ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNY STEWARD, No. 20-15680
Plaintiff-Appellant, D.C. No. 1:18-cv-00551-AWI-
BAM
v.
NGOZI ONYINYA IGBINOSA, Primary MEMORANDUM*
Care Physician; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
California state prisoner Donny Steward appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs and other federal and state law violations.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
*
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).
court’s dismissal under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113,
1118 (9th Cir. 2012). We affirm in part, reverse in part, and remand.
The district court dismissed Steward’s Eighth Amendment claims because
Steward failed to allege facts sufficient to state a plausible claim. However,
Steward alleged that on September 16, 2014, he was denied medical treatment by
several defendants despite lying on the ground in extreme pain. After another
prison official facilitated getting Steward into the medical center, Steward was
made to wait three hours and eventually injected with an unidentified substance
which did not alleviate his pain. Steward also alleged that on October 25, 2014,
Dr. Ngozi Onyinya Igbinosa deliberately caused him injury by holding him
immobile and scraping her fingernail down his forearm and hand which caused
extreme pain due to Steward’s medical conditions. In addition, Steward alleged
that nurses (including defendants Faria and Nelson) denied him access to treatment
for his diabetes-related conditions for nine months despite Steward’s repeated
efforts to obtain medical assistance, and that as a result he suffered harm including
extreme pain, swelling, loss of muscle mass, and feeling. Steward provided some
specific dates he was turned away (e.g., September 14, 15, 16, 21, and 22 of 2014)
and alleged that he made seven other attempts to be seen. Finally, Steward alleged
that defendants J. Lewis, Director of Policy and Risk Management Services, and
Brightwell, Captain on the Second Watch Yard, were aware that he was being
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denied access to medical care but did nothing to assist him. These allegations,
liberally construed, are “sufficient to warrant ordering [defendants] to file an
answer.” Id. at 1116.
In his opening brief, Steward fails to address the grounds for dismissal
regarding his claims under the First and Fourteenth Amendments and state law and
has therefore waived his challenge to this portion of the district court’s order. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e
will not consider any claims that were not actually argued in appellant’s opening
brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not
supported by argument in pro se appellant’s opening brief are waived).
In sum, we affirm the judgment as to Steward’s claims under the First and
Fourteenth Amendments and state law, reverse the judgment as to Steward’s
Eighth Amendment claims, and remand to the district court to proceed with service
of process for Steward’s Eighth Amendment claims only.
We reject as without merit Steward’s contention that his First Amendment
and due process rights were violated by the district court’s dismissal of his action.
AFFIRMED in part, REVERSED in part, and REMANDED.
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