FILED
NOT FOR PUBLICATION DEC 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY WAYNE MARTIN, No. 12-17672
Plaintiff - Appellant, D.C. No. 2:12-cv-01068-PGR-
JFM
v.
DAVID JOHNSON, Doctor, Surgeon at MEMORANDUM*
Mountain Vista Hospital, Mesa, Arizona;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Arizona state prisoner Terry Wayne Martin appeals pro se from the district
court’s judgment in 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo a district court’s dismissal under 28 U.S.C. § 1915A. Weilburg v.
Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). We may affirm on any basis
supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008), and we affirm.
The district court properly dismissed Martin’s claim against defendants
Johnson, Phan, and Glassey because Martin failed to allege facts showing that
these defendants acted with deliberate indifference in treating his cellulitis and
other related medical issues. See Toguchi v. Chung, 391 F.3d 1051, 1057-58, 1060
(9th Cir. 2004) (providing the standard for deliberate indifference, including where
a claim involves choices between alternative courses of treatment, and explaining
that a showing of negligence or medical malpractice is insufficient to establish a
constitutional deprivation). Dismissal of Martin’s claims against defendants Barr,
Waker, Ryan, and Herr was proper for the same reason. See id.
The district court properly dismissed Martin’s claim against defendant
P.N.A./C.H.C. because a defendant cannot be held liable under § 1983 solely
because it employs individuals who may have violated the plaintiff’s constitutional
rights, and Martin alleged only that P.N.A./C.H.C. “allowed their staff to operate
below standards.” See Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143,
1152 (9th Cir. 2011) (“[T]here is no respondeat superior liability under § 1983.”);
2 12-17672
see also Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1194 (9th Cir. 2002)
(municipal liability requires showing that a policy, custom, or failure to train
amounted to deliberate indifference).
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) (per curiam).
AFFIRMED.
3 12-17672