Adam Hawthorne v. Mackenzie Bennington;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM HAWTHORNE,
Plaintiff-Appellant,
v.
MACKENZIE BENNINGTON; et al.,
Defendants-Appellees.
No. 18-15693
D.C. No. 3:16-cv-00235-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Nevada state prisoner Adam Hawthorne appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims. 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
* 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).
FILED
FEB 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 in part, reverse
in part, and remand.
In Hawthorne’s opening brief, he fails to challenge specifically any of the
grounds for the district court’s dismissal of his due process claims. Because
Hawthorne has waived any challenge to these claims, we affirm their dismissal.
See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(“[W]e review only issues which are argued specifically and distinctly in a party’s
opening brief.” (citation and internal quotation marks omitted)); Acosta-Huerta v.
Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by argument in pro se
appellant’s opening brief are waived).
The district court dismissed Hawthorne’s deliberate indifference and
retaliation claims for failure to state a claim. However, dismissal of these claims
against defendant Bennington was premature. Hawthorne alleged that after his
backed “seized up” and caused him to collapse, defendant Bennington refused to
examine him or refer him to a doctor, and then retaliated against him by falsely
charging him with filing a frivolous medical complaint. Liberally construed, these
allegations “are sufficient to warrant ordering [Bennington] to file an answer.”

-- 2 of 3 --

3
Wilhelm, 680 F.3d at 116. We reverse the judgment as to Hawthorne’s deliberate
indifference and retaliation claims against defendant Bennington and remand for
further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.

-- 3 of 3 --