Ester Burnett v. DUGAN, Doctor;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTER BURNETT,
Plaintiff - Appellant,
v.
DUGAN, Doctor; et al.,
Defendants - Appellees.
No. 11-56816
D.C. No. 3:08-cv-01324-L-WVG
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted July 24, 2013**
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Ester Burnett, a California state prisoner, 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.
FILED
AUG 05 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2 11-56816
§ 1291. We review de novo the district court’s dismissal for failure to state a
claim. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). We affirm.
The district court properly dismissed Burnett’s deliberate indifference
claims against defendants Dugan and Hawthorne because Burnett failed to allege
facts in his operative second amended complaint showing that defendants acted
with deliberate indifference in their treatment of Burnett’s back pain. See Jackson
v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (to establish that a difference of
opinion amounted to deliberate indifference, a prisoner must show that the
defendants’ chosen course of treatment was medically unacceptable and in
conscious disregard of an excessive risk to the prisoner’s health); see also Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a
supervisor under § 1983 ‘if there exists either (1) his or her personal involvement
in the constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.’” (citation
omitted)); Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007)
(§ 1983 does not provide a cause of action for alleged violations of state law).
The district court did not abuse its discretion in denying Burnett’s motion to
amend the complaint because amendment would have been futile. See Johnson v.
Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (setting forth standard of review and

-- 2 of 3 --

3 11-56816
noting that “[f]utility alone can justify the denial of a motion to amend” (citation
and internal quotation marks omitted)).
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)
(per curiam).
Burnett’s motion to file an oversized reply brief is granted. The Clerk shall
file the reply brief submitted on January 25, 2013.
AFFIRMED.

-- 3 of 3 --