HATHAWAY v. VANDEVER (2020)

MEMORANDUM **

Oregon state prisoner Darius Joshua Hathaway appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging a failure-to-protect claim. 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 for failure to state a claim under 28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) ). We affirm.

The district court properly dismissed Hathaway's action because Hathaway failed to allege facts sufficient to show that defendants were deliberately indifferent to a substantial risk of harm to Hathaway during his altercation with another inmate. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (to state an Eighth Amendment failure-to-protect claim, an inmate must allege that the deprivation was “objectively, sufficiently serious” and defendants were deliberately indifferent to a substantial risk of harm); see also id. at 837, 114 S.Ct. 1970 (a prison official is deliberately indifferent if the prison official “knows of and disregards an excessive risk to inmate health or safety”).

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.