Johnny Lee Warren v. MARK NAPIER, Sheriff at Pima County Jail;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY LEE WARREN,
Plaintiff-Appellant,
v.
MARK NAPIER, Sheriff at Pima County
Jail; et al.,
Defendants-Appellees.
No. 22-15717
D.C. No. 4:21-cv-00540-JCH-PSOT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John Charles Hinderaker, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Johnny Lee Warren appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging various constitutional claims that
arose while he was a pretrial detainee. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v.
* 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
JUL 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Warren’s claims against defendants
Conover and Judge Bernini as barred by absolute immunity. See Imbler v.
Pachtman, 424 U.S. 409, 430 (1976) (holding that prosecutors are entitled to
absolute immunity for activities “intimately associated with the judicial phase of
the criminal process”); Shucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988)
(“A judge loses absolute immunity only when [the judge] acts in the clear absence
of all jurisdiction or performs an act that is not judicial in nature.”).
The district court properly dismissed Warren’s claims against defendant
Brerenton because Warren failed to allege facts sufficient to show that Brerenton
acted under color of state law. See Polk County v. Dodson, 454 U.S. 312, 317-20
(1981) (explaining that a private attorney or public defender does not act under
color of state law within the meaning of § 1983).
The district court properly dismissed Warren’s claims against defendant
Nanos because Warren failed to allege facts sufficient to show that Nanos made
any particular decisions regarding the jail’s COVID-19 policy, failed to train or
supervise his subordinates, or discriminated against Warren. See Gordon v.
County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (explaining that an
unconstitutional conditions claim requires showing an “intentional decision” by the
defendant and a failure to take reasonable measures to abate the risk of serious

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harm to the plaintiff); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir.
1998) (order) (explaining that a discrimination claim requires showing “an intent
or purpose to discriminate” on the basis of the plaintiff’s membership in a
protected class); Canell v. Lightner, 143 F.3d 1210, 1213-14 (9th Cir. 1998)
(explaining that liability for failure to train properly requires showing that
inadequate training was a deliberate choice).
The district court properly dismissed Warren’s claims against Sergeant Ariz,
Nurse KMH, and the individual detention officers because Warren failed to allege
facts sufficient to show that these defendants violated his constitutional rights. See
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (explaining that although pro
se pleadings are construed liberally, plaintiff must present factual allegations
sufficient to state a plausible claim for relief); Barren, 152 F.3d at 1194 (“A
plaintiff must allege facts, not simply conclusions, that show that an individual was
personally involved in the deprivation of his civil rights.”).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Warren’s motion for a default judgment (Docket Entry No. 14) is denied.
Warren’s requests for a copy of his opening brief, set forth in his opening brief, are
granted. The Clerk will send a copy of the opening brief submitted at Docket

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Entry No. 8 to Warren.
AFFIRMED.

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