Enrique Sanchez v. Kimberly Seibel ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE SALINAS SANCHEZ, No. 19-56050
Plaintiff-Appellant, D.C. No. 5:15-cv-01901-R-DFM
v.
MEMORANDUM*
KIMBERLY A. SEIBEL, Warden; ORRY
MARCIANO, Physician Assistant at CVSP,
C-Yard, in his individual and official
capacities,
Defendants-Appellees,
and
HOWARD TUNG, Surgeon at Tri-City
Medical Center, in his individual capacity; et
al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted December 2, 2020**
*
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).
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
California state prisoner Enrique Salinas Sanchez 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 the district court’s judgment on the pleadings. Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). We may
affirm on any ground supported by the record. Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). We affirm.
Dismissal of Sanchez’s deliberate indifference claim was proper because
Sanchez failed to allege facts sufficient to state a plausible claim. See Starr v.
Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (pleading requirements for
establishing supervisory liability); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are construed liberally, plaintiff must present
factual allegations sufficient to state a plausible claim for relief); 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 inmate
health; medical malpractice, negligence, or a difference of opinion concerning the
course of treatment does not amount to deliberate indifference).
Because Sanchez did not object to the magistrate judge’s report and
recommendation, he waived his right to challenge the district court’s factual
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findings concerning exhaustion of his deliberate indifference and excessive force
claims arising from Adams’s and Covarrubias’s transportation of Sanchez from the
hospital to the prison. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998)
(holding that failure to object to a magistrate judge's recommendation waives all
objections to the magistrate judge's findings of fact, but does not ordinarily waive
objections to purely legal conclusions). The district court properly granted
summary judgment on these claims because Sanchez failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act
(“PLRA”). See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the PLRA requires
“proper exhaustion ... which means using all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on the merits)” (citation
and internal quotation marks omitted)); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
Cir. 2009) (“[A] grievance suffices if it alerts the prison to the nature of the wrong
for which redress is sought” (citation and internal quotation marks omitted)).
We reject as unsupported by the record Sanchez’s contentions that the
district court was biased or erred by simultaneously considering a motion to
dismiss and motion for summary judgment.
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.
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