Bryan Bonham v. Kim Adamson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRYAN P. BONHAM, No. 19-17576
Plaintiff-Appellant, D.C. No. 3:17-cv-00727-RCJ-CLB
v.
MEMORANDUM*
KIM ADAMSON, Doctor at LCC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Nevada state prisoner Bryan P. Bonham appeals pro se from the district
court’s judgment dismissing his action alleging constitutional claims and claims
under the Americans with Disabilities Act (“ADA”). We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A for
*
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).
failure to state a claim. Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015).
We affirm in part, vacate in part, and remand.
We affirm the dismissal of Bonham’s constitutional claims because Bonham
has not challenged the dismissal of those claims on appeal. See Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999) (arguments not raised by a party in the
opening brief are deemed waived).
However, dismissal of Bonham’s ADA claim without leave to amend was
premature because it is not “absolutely clear” that any deficiencies could not be
cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(en banc) (leave to amend should be given unless the deficiencies in the complaint
cannot be cured by amendment). Bonham alleged a physical impairment of his
lower back which at times caused him difficultly walking and impaired his ability
to sit or stand for long periods of time. With some direction from the district court,
Bonham may be able to allege the required elements. See Thompson v. Davis, 295
F.3d 890, 895-6 (9th Cir. 2002) (elements of a Title II claim under the ADA;
disability under the ADA is defined as a physical or mental impairment that
substantially limits one or more major life activities); see also Akhtar v. Mesa, 698
F.3d 1202, 1212 (9th Cir. 2012) (before dismissing a pro se complaint, the district
court must provide the litigant notice of the deficiencies to allow the litigant an
2 19-17576
opportunity to amend effectively). We vacate the judgment in part, and remand for
the district court to provide Bonham with an opportunity to amend his ADA 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).
AFFIRMED in part, VACATED in part, and REMANDED.
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