FILED
NOT FOR PUBLICATION OCT 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW A. DuBOIS, No. 13-16031
Plaintiff - Appellant, D.C. No. 3:12-cv-00415-MMD-
VPC
v.
WASHOE COUNTY SHERIFF’S MEMORANDUM*
OFFICE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Submitted October 14, 2014**
Before: LEAVY, GOULD, and BERZON, Circuit Judges.
California state prisoner Matthew A. DuBois appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs while detained in a Nevada jail. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal for failure to state a claim. Hamilton v. Brown, 630 F.3d 889, 892 (9th
Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Hebbe v. Pliler, 627 F.3d 338,
341-42 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly dismissed DuBois’s claim against defendant
Dr. Hahn because DuBois failed to allege facts sufficient to show that Dr. Hahn
acted with deliberate indifference in treating his foot injury. See Toguchi v. Chung,
391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (deliberate indifference is a high legal
standard, and is met only if the prison official knows of and disregards an
excessive risk to the prisoner’s health; medical malpractice or negligence is
insufficient to establish an Eighth Amendment violation); see also Starr v. Baca,
652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for supervisory liability under
§ 1983); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)
(the Eighth Amendment standard applies to pretrial detainees alleging cruel and
unusual punishment in violation of the Fourteenth Amendment).
The district court properly dismissed DuBois’s claim against defendants
Washoe County Sheriff’s Office and Prison Health Services because DuBois failed
to allege facts sufficient to show that he was harmed by a policy or custom. See
Jackson v. Barnes, 749 F.3d 755, 762-64 (9th Cir. 2014) (requirements for alleging
2 13-16031
municipal liability under § 1983); Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1138-39 (9th Cir. 2012) (requirements for municipal liability apply to private
entities sued under § 1983).
To the extent that DuBois challenges the district court’s order staying
discovery, the court did not abuse its discretion because DuBois failed to describe
the discovery he sought. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)
(setting forth the standard of review and describing trial court’s broad discretion to
deny discovery).
AFFIRMED.
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