NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIANTE DION SCOTT, No. 19-17381
Plaintiff-Appellant, D.C. No. 1:17-cv-01146-LJO-GSA
v.
MEMORANDUM*
OLGA BEREGOVSKAY, M.D.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted August 5, 2020**
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
California state prisoner Tiante Dion Scott appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state
law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C.
*
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).
§ 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal under 28 U.S.C. § 1915A). We affirm in part, vacate in part, and
remand.
The district court properly dismissed Scott’s due process claim because
Scott failed to allege facts sufficient to show a protected liberty interest. See
Sandin v. Conner, 515 U.S. 472, 483-85 (1995) (a prisoner has no protected liberty
interest when the sanction imposed neither extends the length of his sentence nor
imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life”).
The district court properly dismissed Scott’s failure-to-protect claim because
Scott failed to allege facts sufficient to show that defendants knew of and
disregarded an excessive risk to his safety. See Lemire v. Cal. Dep’t of Corrs. &
Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (setting forth elements of a failure-to-
protect claim).
The district court properly dismissed Scott’s medical privacy claim because
Scott failed to allege facts sufficient to show that that defendants interviewed Scott
in the holding cages despite knowledge of a substantial risk of serious harm, or that
such interview improperly disclosed any private information. See Lemire, 726
F.3d at 1074; Norman–Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269
(9th Cir. 1998) (discussing the constitutionally protected privacy interest).
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The district court dismissed Scott’s medical deliberate indifference claim
because Scott failed to allege facts sufficient to show that defendants knew of and
disregarded an excessive risk to his health. However, Scott alleged that he
informed defendants of pain resulting from his neck wound and arm injury,
defendants failed to provide and delayed medical treatment for Scott’s neck
infection, bicep tear, and torn rotator cuff, and he was later found to have an
infected piece of a foreign object lodged in his neck. Liberally construed, Scott’s
allegations “are sufficient to warrant ordering [defendants] to file an answer.”
Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); id. at 1122 (denying or
delaying medical treatment can amount to deliberate indifference); Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official is deliberately
indifferent if he or she knows of and disregards an excessive risk to an inmate’s
health). We vacate the district court’s judgment as to Scott’s medical deliberate
indifference claim and remand for further proceedings.
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).
AFFIRMED in part, VACATED in part, and REMANDED.
3 19-17381
Tiante Scott v. Olga Beregovskay
Combined Opinion