Antony Murrell v. Charles Ryan ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONY T. MURRELL, No. 19-16360
Plaintiff-Appellant, D.C. No. 2:18-cv-03020-DWL-
DMF
v.
CHARLES L. RYAN; et al., MEMORANDUM*
Defendants-Appellees,
and
VILLMA BURKE, RN; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
*
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).
Arizona state prisoner Antony T. Murrell 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. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915A for failure to
state a claim. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We
affirm.
The district court properly dismissed Murrell’s claim against defendants
Igwe, Perkins, Corliss, Shuman, Cordova, and Lesli because Murrell failed to
allege facts sufficient to show that these defendants were deliberately indifferent to
his back pain. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although
pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to
state a plausible claim); Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004)
(a prison official is deliberately indifferent only if he or she knows of and
disregards an excessive risk to the prisoner’s health; medical malpractice,
negligence, or a difference of opinion concerning the course of treatment does not
amount to deliberate indifference).
The district court properly dismissed Murrell’s claim against defendant Ryan
because Murrell failed to allege facts sufficient to show that Ryan personally
participated in a constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1207-
08 (9th Cir. 2011) (requirements for establishing supervisory liability).
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The district court properly dismissed Murrell’s claim against defendant
Corizon Health because Murrell failed to allege facts sufficient to show that he
suffered a constitutional violation as a result of an official policy or custom of
Corizon. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (to
state a § 1983 claim against a private entity that acts under color of state law, a
plaintiff must show that a constitutional violation “was caused by an official policy
or custom of [the private entity]”).
The district court did not abuse its discretion by dismissing Murrell’s third
amended complaint without leave to amend because amendment would have been
futile. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth
standard of review and factors for determining whether to grant leave to amend);
Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1072 (9th Cir. 2008)
(“[T]he district court’s discretion to deny leave to amend is particularly broad
where plaintiff has previously amended the complaint.” (citation and internal
quotation marks omitted)).
Murrell’s motion for appointment of counsel is denied.
AFFIRMED.
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