FILED
NOT FOR PUBLICATION APR 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR WILLIAMS, Jr., No. 13-15426
Plaintiff - Appellant, D.C. No. 2:09-cv-01979-KJD
v.
MEMORANDUM*
STEVEN TURNER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Nevada state prisoner Oscar Williams, Jr., appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging Eighth Amendment
violations, among other claims. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a
*
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).
claim. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). We may affirm on
any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP,
534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part, reverse in part, and
remand.
Dismissal of Williams’s claim against defendant Turner was proper because
Williams failed to allege facts in his second amended complaint showing that
Turner had a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S.
825, 837 (1994) (for a deliberate indifference claim, “the official must both be
aware of the facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference”); see also County of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“[W]here a particular Amendment
provides an explicit textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” (citations
and internal quotation marks omitted)); Hebbe, 627 F.3d at 341-42 (though pro se
pleadings are to be liberally construed, a plaintiff must still present factual
allegations sufficient to state a plausible claim for relief).
However, liberally construed, Williams stated a cognizable Eighth
Amendment claim against defendant Hanke, a corrections officer, by alleging that
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on a particular date, Hanke struck Williams’s hand with a hard brush, without
cause, causing permanent damage to his finger. See Hudson v. McMillian, 503
U.S. 1, 6-7 (1992) (standard for evaluating a claim of excessive force). Williams
also stated a cognizable Eighth Amendment claim against Donat, warden of the
prison, by alleging that Donat knew of Hanke’s history of violence and propensity
to physically abuse inmates but failed to take reasonable steps to protect them from
him. See Farmer, 511 U.S. at 837 (standard for evaluating deliberate indifference
claim); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for
supervisory deliberate indifference). Accordingly, we reverse and remand for
further proceedings as to Williams’s Eighth Amendment claims against Hanke and
Donat.
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).
The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
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Williams v. Turner, No. 13-15426
IKUTA, Circuit Judge, dissenting:
I dissent as to defendant Donat because, under the standard set forth in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), Williams’s complaint fails to state a claim
against Donat. See id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)) (“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’”).
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