FILED
NOT FOR PUBLICATION AUG 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN HAIRL WILHELM, No. 15-15276
Plaintiff - Appellant, D.C. No. 1:12-cv-00386-AWI-
SAB
v.
JEANNIE WOODFORD, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
California state prisoner Steven Hairl Wilhelm appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his health and safety due to his exposure to environmental tobacco
smoke while housed in prison. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
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)). We affirm.
The district court properly dismissed Wilhelm’s action because Wilhelm
failed to allege facts sufficient to show that defendant Woodford knew of and
disregarded a substantial risk of serious harm to Wilhelm. See Farmer v. Brennan,
511 U.S. 825, 837 (1994) (“[A] prison official cannot be found liable under the
Eighth Amendment . . . unless the official knows of and disregards an excessive
risk to inmate health[.]”); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010) (although pro se pleadings are liberally construed, plaintiff must allege facts
sufficient to state a plausible claim).
We do not consider 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).
Wilhelm’s motion for leave to file an amended complaint is denied.
AFFIRMED.
2 15-15276