NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP HUGHES, No. 16-16552
Plaintiff-Appellant, D.C. No. 3:16-cv-00028-RCJ-WGC
v.
MEMORANDUM*
BACA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Nevada state prisoner Philip Hughes appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials were
deliberately indifferent to his safety and serious medical needs. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
*
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).
state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th
Cir. 2000). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal of Hughes’s claim alleging deliberate indifference to his safety
was proper because Hughes failed to allege facts sufficient to show that defendants
knew of and disregarded a substantial risk of serious harm to Hughes’s safety by
allegedly failing to protect him from an attack by another inmate. See Farmer v.
Brennan, 511 U.S. 825, 834-44 (1994) (stating that prison officials have a duty to
protect prisoners from violence at the hands of other prisoners, but officials may be
liable under the Eighth Amendment only if they act or fail to act “with deliberate
indifference to a substantial risk of serious harm to a prisoner”); see also Jones v.
Williams, 297 F.3d 930, 934 (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 properly dismissed Hughes’s claim alleging deliberate
indifference to his serious medical needs because Hughes failed to allege facts
sufficient to state a plausible claim. See Toguchi v. Chung, 391 F.3d 1051, 1057-
60 (9th Cir. 2004) (“A prison official acts with deliberate indifference . . . only if
the [prison official] knows of and disregards an excessive risk to inmate health”;
neither a difference of opinion concerning the course of treatment nor mere
2 16-16552
negligence in treating a medical condition amounts to deliberate indifference
(citation and internal quotation marks omitted)).
The district court did not err in failing to recuse itself sua sponte because
Hughes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;
Noli v. Comm’r., 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in
original, citation and internal quotation marks omitted)).
AFFIRMED.
3 16-16552