NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HYRUM JOSEPH WEST, No. 15-16913
Plaintiff-Appellant, D.C. No. 2:13-cv-00271-APG-
VCF
v.
NYE COUNTY DETENTION; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Hyrum Joseph West, a former pretrial detainee, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
any basis supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 389
F.3d 802, 811 (9th Cir. 2004). We affirm in part, vacate in part, and remand.
Summary judgment was proper on West’s medical deliberate indifference
claim because under any potentially applicable standard, West failed to raise a
genuine dispute of material fact as to whether defendants “kn[ew] of and
disregard[ed] an excessive risk to [West’s] health and safety.” Toguchi, 391 F.3d
at 1057-58 (neither a prisoner’s difference of opinion concerning the course of
treatment nor mere negligence in treating a medical condition amounts to
deliberate indifference); Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir.
2003) (pretrial detainee’s claim of medical deliberate indifference is analyzed
under the Fourteenth Amendment Due Process Clause rather than under the Eighth
Amendment, but same standards apply); see also Castro v. County of Los Angeles,
833 F.3d 1060, 1067-71 (9th Cir. 2016) (en banc) (setting forth elements of
Fourteenth Amendment failure-to-protect claim by pretrial detainee); Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (supervisory liability under § 1983
requires “knowledge of and acquiescence in unconstitutional conduct” by
subordinates).
Summary judgment was proper on West’s conditions-of-confinement claim
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against defendants Demeo, Marshall, and Rising in their individual capacities
because West failed to raise a triable dispute as to whether these defendants
“kn[ew] of and disregard[ed] an excessive risk to [his] health or safety . . . .”
Farmer v. Brennan, 511 U.S. 825, 837 (1970) (“[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”).
Summary judgment was proper on West’s conditions-of confinement claim
against defendants Nye County and Demeo, Marshall, and Rising in their official
capacities with regard to alleged policies or customs of (1) not medically screening
for contagious diseases and (2) delaying medical treatment for pretrial detainees
because West failed to raise a triable dispute as to whether defendants had in place
such policies or customs. See Castro, 833 F.3d at 1073-76 (discussing
requirements to establish municipal liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978)).
However, West raised a triable dispute as to whether defendants Nye County
and Demeo, Marshall, and Rising in their official capacities had a policy or custom
of using the old Pahrump jail during construction of the new jail facility despite
allegedly inhumane conditions due to rust, black mold, and asbestos. Defendants’
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discovery responses indicating that individual defendants were unaware of any
inhumane conditions at the old Pahrump jail were insufficient to demonstrate the
absence of a triable dispute as to whether Nye County’s policy or custom caused
injury to West and whether the policy or custom reflected deliberate indifference to
West’s constitutional rights. See id. at 1076 (“[T]he deliberate indifference
standard for municipalities is always an objective inquiry.”); see also Monell, 436
U.S. at 690 n.55 (official capacity suits “represent only another way of pleading an
action against an entity of which an officer is an agent”). We vacate the judgment
in part and remand for further proceedings on this claim only.
The district court did not abuse its discretion by denying West’s motion for
leave to amend to add members of the Nye County Board of County
Commissioners as defendants. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir.
2010) (setting forth standard of review and factors for permitting leave to amend).
The district court did not clearly err by affirming the magistrate judge’s
order denying West’s motions to compel discovery and for leave to expand the
interrogatory limit. See Osband v. Woodford, 290 F.3d 1036, 1042 (9th Cir. 2002)
(setting forth standard of review).
West forfeited his opportunity to appeal the denial of his motion for
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extension of time for discovery and “motion for discovery” because he did not file
any objections to the magistrate judge’s order. See Simpson v. Lear Astronics
Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (“[A] party who fails to file timely
objections to a magistrate judge’s nondispositive order with the district judge to
whom the case is assigned forfeits its right to appellate review of that order.”).
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).
In sum, we vacate summary judgment only on West’s conditions-of-
confinement claim against defendants Nye County and Demeo, Marshall, and
Rising in their official capacities, based on the alleged policy or custom of using
the old Pahrump jail during construction of the new jail facility despite allegedly
inhumane conditions due to rust, black mold, and asbestos. The district court may
wish to reconsider its discovery rulings in light of our determination. In all other
respects, we affirm.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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