FILED
NOT FOR PUBLICATION DEC 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AVON DAVIES, No. 14-17069
Plaintiff - Appellant, D.C. No. 2:14-cv-00945-TLN-
EFB
v.
CURTIS ALLEN, Physician, California MEMORANDUM*
State Prison - Solano; JEFFERY BEARD,
Secretary, California Department of
Corrections and Rehabilitation,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
California state prisoner Avon Davies appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants violated
*
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).
his constitutional rights by subjecting him to a blood test under California Health
and Safety Code § 1250.4(e) because they suspected that another inmate was
infected with shingles. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under 28 U.S.C. § 1915A. Weilburg v. Shapiro, 488 F.3d
1202, 1205 (9th Cir. 2007). We affirm.
The district court properly dismissed Davies’s § 1983 claim alleging
violations of the Fourth Amendment because Davies failed to allege facts sufficient
to show that the blood test was not “reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89-91 (1987) (setting forth factors to
determine the reasonableness of a challenged prison regulation); see also
Thompson v. City of Los Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989) (holding
that the county had a compelling interest in diagnosing and preventing the
transmission of serious disease among detainees), overruled on other grounds by
Bull v. City & County of San Francisco, 595 F.3d 964, 977-81 (9th Cir. 2010) (en
banc).
To the extent Davies challenges the constitutionality of section 1250.4(e) of
the California Health and Safety Code, we likewise reject this argument because
the section’s authorization of the Department of Corrections to ascertain and
2 14-17069
investigate cases of specified diseases is “reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89.
The district court did not abuse its discretion in dismissing without leave to
amend because the deficiencies in Davies’s complaint could not be cured by
amendment. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)
(setting forth standard of review and explaining that leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment).
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).
AFFIRMED.
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