NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD EDWARDS, No. 20-15190
Plaintiff-Appellant, D.C. No. 2:19-cv-05440-DWL-
CDB
v.
JACKSON, Counselor, individual and MEMORANDUM*
official capacity; et al.,
Defendants-Appellees,
and
TODD THOMAS, Warden, individual and
official capacity,
Defendant.
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
*
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).
Arizona state prisoner Harold Edwards appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim. Wilhelm v.
Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm.
The district court properly dismissed Edwards’s claim alleging deliberate
indifference to safety because Edwards failed to allege facts sufficient to show that
defendants knew of and disregarded a substantial risk of serious harm to Edwards.
See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se
pleadings are liberally construed, a plaintiff must allege facts sufficient to state a
plausible claim); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison
official cannot be held liable for deliberate indifference “unless the official knows
of and disregards an excessive risk to inmate health or safety; the 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”).
The district court properly dismissed Edwards’s conditions-of-confinement
and right-to-privacy claims arising from cross-gender observations because
Edwards failed to allege facts sufficient to show that the observations amounted to
an unnecessary and wanton infliction of pain, or were not infrequent, casual, or
reasonably related to a legitimate penological interest. See Michenfelder v.
2 20-15190
Sumner, 860 F.2d 328, 333-34 (9th Cir. 1998) (explaining that “prisoners retain a
limited right to bodily privacy” and discussing standard for right-to-privacy claim);
Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (the Eighth Amendment
prohibits only “the unnecessary and wanton infliction of pain”; the court must ask
“if the officials acted with a sufficiently culpable state of mind” and “if the alleged
wrongdoing was objectively harmful enough to establish a constitutional violation”
(citation and internal quotation marks omitted)).
We do not consider Edwards’s equal protection claim because Edwards did
not replead this claim in the operative first amended complaint. See Lacey v.
Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (claims dismissed
with leave to amend are waived if not repled).
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.
3 20-15190