FILED
NOT FOR PUBLICATION JAN 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN ALLEN FLETCHER, No. 12-55918
Plaintiff - Appellant, D.C. No. 2:07-cv-04180-JHN-JC
v.
MEMORANDUM*
LEE BACA, Sheriff; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
California state prisoner Shawn Allen Fletcher appeals pro se from the
district court’s judgment in his 42 U.S.C. § 1983 action alleging that defendants
used excessive force against him and were deliberately indifferent to his serious
*
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).
medical needs while he was a pretrial detainee. We review de novo the district
court’s grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
Cir. 2004). We review de novo the district court’s dismissal for failure to exhaust
administrative remedies under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a), and for clear error its factual determinations. Wyatt v. Terhune, 315
F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly granted summary judgment on Fletcher’s claim
against defendant Baca because Fletcher failed to raise a genuine dispute of
material fact as to whether Baca was personally involved in any constitutional
violation or whether there was a causal connection between Baca’s conduct and
any such violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)
(requirements for supervisory liability); Cafasso, U.S. ex rel. v. Gen. Dynamics C4
Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a
plaintiff must set forth non-speculative evidence of specific facts, not sweeping
conclusory allegations.”).
The district court properly granted summary judgment on Fletcher’s claim
against defendant Ghaemian because Fletcher failed to raise a genuine dispute of
material fact as to whether Ghaemian was deliberately indifferent when she
refrained from giving Fletcher medication until there was confirmation that he was
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actually prescribed that medication. See Toguchi, 391 F.3d at 1057-58 (a prison
official acts with deliberate indifference only if he or she knows of and disregards
an excessive risk to the prisoner’s health and safety; a mere difference in opinion is
insufficient to establish deliberate indifference); see also Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (“Although the Fourteenth
Amendment’s Due Process Clause, rather than the Eighth Amendment’s protection
against cruel and unusual punishment, applies to pretrial detainees, we apply the
same standards in both cases[.]” (internal citation omitted)).
The district court properly dismissed the remaining claims and defendants in
Fletcher’s action because Fletcher failed to exhaust administrative remedies or
demonstrate that administrative remedies were effectively unavailable to him. See
Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper exhaustion”
is mandatory and requires adherence to administrative procedural rules); cf. Nunez
v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s failure to
exhaust where prisoner is prevented from doing so).
We deny Fletcher’s pending motion, filed on May 20, 2013, requesting an
order for subpoena.
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We grant Fletcher’s pending motion, filed on June 24, 2013, requesting an
extension of time to file his reply brief, and we instruct the Clerk to file the reply
brief received on July 8, 2013.
AFFIRMED.
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