FILED
NOT FOR PUBLICATION OCT 7 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT U. SOLOMON, No. 13-15901
Plaintiff - Appellant, D.C. No. 1:11-cv-01511-SKO
v.
MEMORANDUM*
M. CARRASCO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding**
Submitted September 23, 2014***
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Vincent U. Solomon, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Solomon consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal
under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm in part,
reverse in part, and remand.
The district court properly dismissed Solomon’s First Amendment
retaliation claim because Solomon failed to allege facts sufficient to show that any
defendant retaliated against him. See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th
Cir. 2009) (setting forth elements of a First Amendment retaliation claim in the
prison context).
The district court properly dismissed Solomon’s due process claim regarding
his placement in administrative segregation because Solomon’s allegations show
that he received sufficient process. See Toussaint v. McCarthy, 801 F.2d 1080,
1100 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Conner, 515
U.S. 472 (1995) (setting forth minimum due process requirements for placement in
administrative segregation).
The district court properly dismissed Solomon’s Eighth Amendment claim
alleging denial of medical appliances because Solomon failed to allege facts
sufficient to show that any defendant was deliberately indifferent to his serious
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medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official
is deliberately indifferent only if he or she “knows of and disregards an excessive
risk to inmate health”); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)
(inadvertent failure to provide medical treatment does not state a deliberate
indifference claim).
The district court properly dismissed Solomon’s Eighth Amendment claim
alleging deprivation of outdoor exercise against all defendants other than Carassco
and Dailo because Solomon failed to allege facts sufficient to link these defendants
to any constitutional violation. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a
plaintiff must allege facts that “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged”).
However, the district court’s dismissal of Solomon’s Eighth Amendment
claim alleging deprivation of outdoor exercise against defendants Carassco and
Dailo was improper because Solomon’s pro se allegations, liberally construed and
affording Solomon the benefit of any doubt, state a claim for deprivation of
outdoor exercise. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (pro
se complaints should be liberally construed); Thomas v. Ponder, 611 F.3d 1144,
1150-52 (9th Cir. 2010) (setting forth elements of an Eighth Amendment claim
based on deprivation of outdoor exercise). Accordingly, we reverse the district
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court’s judgment as to Solomon’s Eight Amendment claim for deprivation of
outdoor exercise as to defendants Carassco and Dailo, and remand for further
proceedings.
We do not consider allegations raised for the first time on appeal, or 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) (per curiam).
Solomon’s request for appellate counsel, set forth in his opening brief, is
denied.
AFFIRMED in part, REVERSED in part, and REMANDED.
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