Everett Spillard v. COSTA, Captain

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVERETT SPILLARD,
Plaintiff-Appellant,
v.
COSTA, Captain; MARGERET UMANAH,
LVN; BICK, Dr., Administrator; SHUTE,
Doctor PCP; SMITH, Head Doctor;
KETHINEL, Infectious Disease Doctor;
BRANDON, ER Doctor; S. GATES,
Administrator; LIRA, Lt.; SNYDER, Sgt.,
Defendants-Appellees.
No. 22-15208
D.C. No. 2:20-cv-00702-KJM-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
Spillard’s motion to proceed in forma pauperis (“IFP”) on appeal (Docket
Entry No. 25) is granted.
* 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
JAN 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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California state prisoner Everett Spillard appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a 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 Spillard’s action because Spillard
failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally,
plaintiff must present factual allegations sufficient to state a plausible claim for
relief); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (discussing due
process claims arising out of negligent or intentional deprivation of property);
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements
of a First Amendment retaliation claim in the prison context); Toguchi v. Chung,
391 F.3d 1051, 1056-60 (9th Cir. 2004) (a prison official is deliberately indifferent
only if he or she knows of and disregards an excessive risk to inmate health;
medical malpractice, negligence, or a difference of opinion concerning the course
of treatment does not amount to deliberate indifference).
We reject as unsupported by the record Spillard’s contention that the
magistrate judge was biased against him.
We do not consider arguments and allegations raised for the first time on

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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions, other than Spillard’s motion to proceed IFP on appeal,
are denied.
AFFIRMED.

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