Opinion
No. 18-16497
06-13-2019
PETER J. HONESTO, Plaintiff-Appellant, v. GAVIN NEWSOM; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 1:17-cv-00467-LJO-EPG MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
California state prisoner Peter J. Honesto appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging federal 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 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.
The district court properly dismissed Honesto's conditions-of-confinement claim against defendants Schwarzenegger, Hartley, and Adams in their individual capacities because it would not have been clear to every reasonable official that housing Honesto in prisons in the Central Valley, where Valley Fever is endemic, was unlawful under the circumstances. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (explaining two-part test for qualified immunity); Hines v. Youseff, 914 F.3d 1218, 1229-30 (9th Cir. 2019) (existing Valley Fever cases did not clearly establish a "right to be free from heightened exposure to Valley Fever spores").
The district court properly dismissed Honesto's claim under Title II of the Americans with Disabilities Act because Honesto failed to allege facts sufficient to state a plausible claim for relief. See Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010) (elements of a claim under Title II); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief).
We do not consider matters not specifically and distinctly raised and argued in the opening brief. Se e Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.