NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS LEE AVERETT, No. 16-15352
Plaintiff-Appellant, D.C. No. 2:16-cv-00163-DLR-
MHB
v.
MARICOPA COUNTY SHERIFF’S MEMORANDUM**
DEPARTMENT; PAUL PENZONE,*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted May 24, 2017***
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Thomas Lee Averett, an Arizona state prisoner and former pretrial detainee,
appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983
*
Paul Penzone has been substituted for his predecessor, Joseph Arpaio,
as Maricopa County Sheriff under Fed. R. App. P. 43(c)(2).
**
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).
action alleging constitutional violations arising from defendants’ alleged policy of
allowing female guards to observe male pretrial detainees showering and using the
bathroom on a daily basis. 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. § 1915(A).
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We vacate and remand.
Averett alleged in his complaint that defendants’ policy of allowing female
detention officers to view Averett while showering and performing bodily
functions violated his Fourteenth Amendment rights. The district court dismissed
Averett’s deliberate indifference claim at the screening stage. However, the
district court did not have the benefit of our recent decision in Byrd v. Maricopa
County Board of Supervisors, 845 F.3d 919 (9th Cir. 2017), which held that
dismissal under § 1915(A) of a pretrial detainee’s action alleging constitutional
claims arising from a similar policy was premature. We vacate the district court’s
judgment and remand for further proceedings.
We do not consider allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Averett’s request for appointment of counsel, set forth in his opening brief,
is denied.
VACATED and REMANDED.
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