NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID HAMILTON, No. 20-17287
Plaintiff-Appellant, D.C. No. 2:19-cv-01181-KJM-EFB
v.
MEMORANDUM*
SAM WONG, Dr.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
California state prisoner David Hamilton appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).
*
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).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We affirm.
The district court properly dismissed Hamilton’s claims against defendants
Wong, Smith, and the unnamed MRI specialist because Hamilton failed to allege
facts sufficient to show that these defendants acted with deliberate indifference
regarding his exposure to gadolinium during a magnetic resonance imaging scan or
the denial of a urinalysis years later. See Toguchi v. Chung, 391 F.3d 1051, 1057-
60 (9th Cir. 2004) (a prison official is deliberately indifferent only if he or she
knows of and disregards an excessive risk to the prisoner’s health).
The district court properly dismissed Hamilton’s claims against defendants
Bayer Healthcare Pharmaceutical Inc. and McKesson Pharmaceuticals Corp.
because Hamilton failed to allege facts sufficient to show that these defendants
acted under color of state law. See Kirtley v. Rainey, 326 F.3d 1088, 1092-96 (9th
Cir. 2003) (explaining that a § 1983 plaintiff must show the defendant “acted under
color of state law” and the tests to determine state action; the central question is
whether the alleged constitutional violation is fairly attributable to the
government).
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.
2 20-17287
David Hamilton v. Sam Wong
Combined Opinion