Lee Wendell Riels v. KATHLEEN ALLISON, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE WENDELL RIELS,
Plaintiff - Appellant,
v.
KATHLEEN ALLISON, Warden; et al.,
Defendants - Appellees.
No. 14-16271
D.C. No. 1:12-cv-01314-LJO-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
California state prisoner Lee Wendell Riels appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth
Amendment violations. 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
FILED
JUL 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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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)). We affirm.
The district court properly dismissed Riels’ action because Riels failed to
allege facts sufficient to show that defendants subjected him to unsanitary
conditions that were severe or prolonged, or that defendants disregarded an
excessive risk to Riels’ health or safety. See Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004) (a prison official is deliberately indifferent only if he or she
knows of and disregards an excessive risk to an inmate’s health; prisoner’s
difference of opinion concerning the course of treatment does not amount to
deliberate indifference); Anderson v. County of Kern, 45 F.3d 1310, 1313-14 (9th
Cir. 1995) (although “subjection of a prisoner to lack of sanitation that is severe or
prolonged can constitute an infliction of pain within the meaning of the Eighth
Amendment[,]” prisoner must show that prison officials knew of and disregarded
an excessive risk to inmate health or safety).
The district court did not abuse its discretion by dismissing without leave to
amend because the deficiencies in Riels’s complaint could not be cured by
amendment. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)
(setting forth standard of review and explaining that leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment); see
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also Fid. Fin. Corp. v. Fed. Home Loan Bank of S.F., 792 F.2d 1432, 1438 (9th
Cir. 1986) (“The district court’s discretion to deny leave to amend is particularly
broad where the court has already given the plaintiff an opportunity to amend his
complaint.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
14-16271 3

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