Jon Paul Powell v. WELL PATH CARE, Jail Deputy, STEPHANIE RIDGELY, Provider

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON PAUL POWELL,
Plaintiff-Appellant,
v.
WELL PATH CARE, Jail Deputy,
STEPHANIE RIDGELY, Provider and
Nurse, JOSH O’HARA, Nurse, MRS.
GARDNER, Nurse, and DEPUTY
MCCLURE, Jail Deputy,
Defendants-Appellees.
No. 22-35242
D.C. No. 6:20-cv-01934-IM
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Submitted December 8, 2022 **
Before: WALLACE, TALLMAN, and BYBEE, Circuit Judges.
Oregon state prisoner Jon Paul Powell appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
* 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
DEC 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violations related to his recovery from a hernia surgery that occurred while he was
a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
In his opening brief, Powell fails to address the district court’s basis for its
summary judgment ruling on Powell’s medical deliberate indifference claim and
Powell has therefore waived any challenge to that aspect of the district court’s
order. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (“[W]e will not consider any claims that were not actually argued in
appellant’s opening brief.”); Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.
1993) (holding issues not supported by argument in pro se appellant’s opening
brief are waived).
The district court did not abuse its discretion in dismissing Powell’s
excessive force claim without leave to amend because amendment would have
been 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 when amendment would be futile); see also
Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015) (holding an excessive force
claim under the Fourteenth Amendment requires a pretrial detainee to show that
the “force purposely or knowingly used against him was objectively
unreasonable”).
The district court did not abuse its discretion by denying Powell’s motions

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for appointment of counsel because Powell did not demonstrate “exceptional
circumstances” justifying the appointment of counsel. See Cano v. Taylor, 739
F.3d 1214, 1218 (9th Cir. 2014) (setting forth standard of review and “exceptional
circumstances” requirement for appointment of counsel).
We reject as unsupported by the record Powell’s contention that the district
court erred by denying as moot his motion to exclude a witness. See Pitts v.
Terrible Herbst, Inc., 653 F.3d 1081, 1087 (9th Cir. 2011) (setting forth standard
of review).
Powell’s motion to dismiss certain defendants (Docket Entry No. 28) is
denied as moot.
AFFIRMED.

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