Kwesi Khary Muhammad v. Christine Barber

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KWESI KHARY MUHAMMAD,
Plaintiff-Appellant,
v.
CHRISTINE BARBER,
Defendant-Appellee.
No. 20-17346
D.C. No. 2:19-cv-02592-TLN-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
California state prisoner Kwesi Khary Muhammad appeals pro se from the
district 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 a dismissal for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Colony Cove Props, LLC v. City of Carson, 640
* 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
SEP 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-17346
F.3d 948, 955 (9th Cir. 2011). We affirm.
The district court properly dismissed Muhammad’s deliberate indifference
claim because Muhammad failed to allege facts sufficient to show that defendant
disregarded an excessive risk to Muhammad’s foot condition. See 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).
The district court properly dismissed Muhammad’s claim for intentional
infliction of emotional distress (“IIED”) because Muhammad failed to allege facts
sufficient to show that defendant intended to inflict severe emotional distress. See
Wong v. Tai Jing, 117 Cal. Rptr. 3d 747, 766 (Ct. App. 2010) (setting forth the
three-part test for IIED under California law).
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).
Muhammad’s request for judicial notice, set forth in the opening brief, is
denied.
AFFIRMED.

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