David Lemus v. T. GUTIERREZ, Correctional Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LEMUS,
Plaintiff-Appellant,
v.
T. GUTIERREZ, Correctional Officer; et al.
Defendants-Appellees,
and
JOHN DOE, Correctional Officer,
Defendant.
No. 19-55827
D.C. No. 3:17-cv-01500-MMA-JLB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner David Lemus appeals pro se from the district
* 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
JAN 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his safety and serious medical needs. We have jurisdiction under
28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056
(9th Cir. 2004). We affirm.
The district court properly granted summary judgment for defendants
Gutierrez and Hernandez because Lemus failed to raise a genuine dispute of
material fact as to whether these defendants were deliberately indifferent to his
safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official is
deliberately indifferent only if he or she “knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he [or
she] must also draw the inference”).
In his opening brief, Lemus fails to raise, and has therefore waived, any
challenge to the district court’s summary judgment for defendant Ko. 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) (issues not supported by
argument in pro se appellant’s opening brief are waived).
AFFIRMED.

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