FILED
NOT FOR PUBLICATION AUG 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURICE McCURDY, No. 13-16270
Plaintiff - Appellant, D.C. No. 2:08-cv-01742-PMP-
PAL
v.
LEROY KIRKEGARD, MEMORANDUM*
Appellee,
LISA ALVAREZ, Officer; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted August 13, 2014**
Before: SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.
Nevada state prisoner Laurice McCurdy appeals pro se from the district
court’s judgment in his action brought under 42 U.S.C. § 1983 and Bivens v. Six
*
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).
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
alleging that defendants committed numerous constitutional violations while
McCurdy was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011) (dismissal
for failure to state a claim); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)
(summary judgment). We affirm.
The district court properly granted summary judgment on McCurdy’s
excessive force claim against defendants Neiman, Alvarez, and Cobb because
McCurdy failed to raise a genuine dispute of material fact as to whether those
defendants used force maliciously and sadistically for the purpose of causing harm.
See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (Eighth Amendment excessive
force inquiry “ultimately turns on whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm” (citation and internal quotation marks omitted)); see also
Frost, 152 F.3d at 1128 (applying Eighth Amendment standards to analyze pretrial
detainee’s rights).
The district court properly dismissed McCurdy’s claim alleging that
defendant Kirkegard failed to provide safe conditions and denied him medical care
because McCurdy failed to allege Kirkegard’s personal involvement in any
2 13-16270
constitutional violation or a causal connection between his conduct and any such
violation. See Starr, 652 F.3d at 1207 (“A defendant may be held liable as a
supervisor under § 1983 if there exists either (1) his or her personal involvement in
the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” (citation and
internal quotation marks omitted)).
The district court properly dismissed McCurdy’s claim alleging that
defendant Fisher subjected him to continuous transfers between facilities, denied
him medical care, and improperly used a black box to restrain him because
McCurdy failed to allege that Fisher had the authority to make transfer or medical
decisions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive a motion to
dismiss, a plaintiff must allege facts that “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged”); Pareto v. FDIC,
139 F.3d 696, 699 (9th Cir. 1998) (“[C]onclusory allegations of law and
unwarranted inferences are not sufficient to defeat a motion to dismiss.”). Nor did
McCurdy allege that Fisher used restraints maliciously and sadistically for the
purpose of causing harm. See Whitley, 475 U.S. at 320-21.
The district court did not abuse its discretion in denying McCurdy’s motion
for appointment of counsel because McCurdy failed to demonstrate exceptional
3 13-16270
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and explaining the “exceptional circumstances”
requirement).
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.
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