Summary
affirming dismissal of pretrial detainee conditions of confinement suit for failure to allege physical injury
Summary of this case from Char v. KhonOpinion
No. 09-16618.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 22, 2010.
Clifford L. Jackson, Salinas, CA, pro se.
Glenn Allen Friedman, Esquire, Alexandra Maija Ozols, Lewis Brisbois Bisgaard Smith LLP, San Francisco, CA, Bryan Padrigh Kerney, Esquire, Fischer Norris Schrader LLP, Daniel P. Schrader, Fischer Schrader, LLP, Monterey, CA, Kristin N. Reyna, Jacqueline Mai, Esquire, Roger M. Mansukhani, Gordon Rees LLP, San Diego, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. D.C. No. 3:07-cv-01202-MMC.
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Clifford L. Jackson appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging unconstitutional conditions of confinement arising from asbestos exposure. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissal for failure to state a claim. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). We affirm.
The district court properly dismissed Jackson's 42 U.S.C. § 1983 claims against all defendants because Jackson failed adequately to allege physical injury and thus his claim for damages was barred under the Prison Litigation Reform Act. See 42 U.S.C. § 1997(e)(e); see also Oliver v. Keller, 289 F.3d 623, 625-28 (9th Cir. 2002) (the physical injury requirement applies to pretrial detention claims and requires more than de minimis physical injury).
We do not consider Jackson's contentions regarding judicial bias because they were not raised in his opening brief. See Brown v. Col. Dep't of Corr., 554 F.3d 747, 752 n. 3 (9th Cir. 2009) (issues not raised in the opening brief are waived). We do not consider Jackson's contentions related to the Comprehensive Environmental Response Compensation and Liability Act and other claims not raised before the district court. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998) (issues not raised before the district court are waived on appeal).
We have reviewed Jackson's remaining contentions and find them unpersuasive.