Sands v. California Department of Corrections & Rehabilitation

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

PHILLIP SANDS, No. 16-15100

Plaintiff-Appellant, D.C. No. 1:15-cv-01140-RRB

v.
MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Ralph R. Beistline, District Judge, Presiding**

Submitted March 8, 2017***

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

California state prisoner Phillip Sands appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth Amendment

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
excessive force claims. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a dismissal for failure to state a claim under 28 U.S.C. §§ 1915A and

1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.

The district court properly dismissed Sands’ action because the California

Department of Corrections and Rehabilitation, as a state agency, is immune from

suit under the Eleventh Amendment, see Brown v. California Dep’t of Corr., 554

F.3d 747, 752 (9th Cir. 2009), and Sands failed to allege facts sufficient to show

that defendants Swift and Marsh personally participated in the alleged

constitutional violations, see Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)

(setting forth requirements for establishing supervisory liability under § 1983);

Jones v. Williams, 297 F.3d 930, 934-35 (9th Cir. 2002) (“In order for a person

acting under color of state law to be liable under section 1983 there must be a

showing of personal participation in the alleged rights deprivation . . . .”).

The district court did not abuse its discretion by dismissing Sands’

complaint without leave to amend because amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(standard of review).

We do not consider facts, documents, and declarations presented for the first

time on appeal. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990)

2 16-15100
(“Documents or facts not presented to the district court are not part of the record on

appeal.”).

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 16-15100