Terrance Jon Irby v. CLIFFORD JOHNSON, Doctor, Clallam Bay Corrections Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRANCE JON IRBY,
Plaintiff-Appellant,
v.
CLIFFORD JOHNSON, Doctor, Clallam
Bay Corrections Center; STEPHEN
SINCLAIR, Former Secretary, Department
of Corrections; CHERYL STRANGE,
Secretary, Department of Corrections; AMY
MOK, Doctor; MOORE, Provider,
Washington State Corrections Center,
Defendants-Appellees.
No. 22-35033
D.C. No. 3:21-cv-05605-BJR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Washington state prisoner Terrance Jon Irby appeals pro se from the district
* 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
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 the district court’s dismissal under 28 U.S.C.
§ 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Irby’s deliberate indifference claims
because Irby failed to allege facts sufficient to show that defendants knew of and
disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004) (explaining that deliberate indifference is a high standard;
medical malpractice or negligence does not amount to deliberate indifference); see
also Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (stating that a
difference of opinion between a physician and a prisoner concerning appropriate
medical care does not amount to deliberate indifference); Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011) (concluding that for a supervisor to be held liable under
§ 1983, the supervisor must have personal involvement in the constitutional
deprivation or a sufficient causal connection must exist between the supervisor’s
wrongful conduct and the constitutional violation). To the extent that Irby alleged
due process claims challenging the lack of adequate medical care, these claims are
encompassed by his Eighth Amendment claims and were properly dismissed. See
Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (stating that generalized notion
of substantive due process is unavailing where another amendment provides

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explicit protection against a particular sort of government action), overruled in part
on other grounds as recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d
1086 (9th Cir. 2007).
The district court did not abuse its discretion by dismissing Irby’s action
without leave to amend because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
where amendment would be futile).
We do not consider matters raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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