Mark Blankenship v. D. Shinn , 696 F. App'x 237 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. BLANKENSHIP, No. 16-15862
Plaintiff-Appellant, D.C. No. 1:14-cv-00168-LEK-KJM
v.
MEMORANDUM*
D. SHINN, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Mark. A. Blankenship, a federal prisoner, appeals pro se from the district
court’s summary judgment and dismissal order in his action under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
alleging deliberate indifference to his serious medical needs while he was a pretrial
*
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).
detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both
the district court’s dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) and summary judgment. Doe v. Abbott Labs., 571 F.3d 930,
933 (9th Cir. 2009). We affirm.
The district court properly granted summary judgment for Warden Shinn
because, under any potentially applicable standard, Blankenship failed to raise a
genuine dispute of material fact as to whether Warden Shinn knew of or
disregarded an excessive risk to Blankenship’s back problem. See Bell v. Wolfish,
441 U.S. 520, 535 (1979) (in considering the conditions of pretrial detention,
courts consider whether the conditions amount to punishment); Toguchi v. Chung,
391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official acts with deliberate
indifference only if the official knows of and disregards an excessive risk to a
prisoner’s health); c.f. Castro v. County of Los Angeles, 833 F.3d 1060, 1067-71
(9th Cir. 2016) (en banc) (setting forth elements of Fourteenth Amendment failure-
to-protect claim by pretrial detainee).
The district court properly dismissed Blankenship’s claim against Shellko
because, under any potentially applicable standard, Blankenship failed to allege
facts sufficient to show that Shellko knew of or disregarded an excessive risk to
Blankenship’s back problem. See Bell, 441 U.S. at 535; Toguchi, 391 F.3d at
1057; c.f. Castro, 833 F.3d at 1071.
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The district court did not abuse its discretion in denying Blankenship’s
motion for default judgment because defendants had not yet been properly served
at the time of Blankenship’s motion. See Benny v. Pipes, 799 F.2d 489, 492 (9th
Cir. 1986) (setting forth standard of review and noting that a court is without
jurisdiction unless there has been proper service).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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