FRANKLIN v. GIURBINO (2019)

MEMORANDUM **

California state prisoner Jeffrey Anthony Franklin 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. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (district court’s dismissal under Fed. R. Civ. P. 12(b)(6)); May v. Baldwin, 109 F.3d 557, 560-61 (9th Cir. 1997) (district court’s decision on qualified immunity). We affirm.

The district court properly dismissed Franklin’s action because it would not have been clear to every reasonable official that relying on a nurse’s judgment that there was no medical reason prohibiting Franklin’s prison transfer was unlawful under the circumstances. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (explaining two-part test for qualified immunity); Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (in order to be liable for deliberate indifference, “the official must 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” (citation and internal quotation marks omitted)).

Franklin’s contentions regarding the district court’s failure to provide him with an opportunity to conduct discovery are unpersuasive.

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.