DURAN v. LEWIS (2019)

MEMORANDUM **

California state prisoner Luis Duran appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate indifference. We have jurisdiction under 28 U.S.C § 1291. We review de novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

The district court properly dismissed Duran’s action because it would not have been clear to every reasonable official that housing Duran in prisons in the Central Valley, where Valley Fever is endemic, 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); Hines v. Youseff, 914 F.3d 1218, 1230-35 (9th Cir. 2019) (existing Valley Fever cases did not clearly establish a “right to be free from heightened exposure to Valley Fever spores”).

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).

Duran’s motion to appoint counsel (Docket Entry No. 9) is denied.

AFFIRMED.