ERIC BROWN V. MATTHEW CATE, No. 17-15113 (9th Cir. 2020)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 21 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ERIC LYNN BROWN, AKA Eric L. Brown, No. U.S. COURT OF APPEALS 17-15113 D.C. No. 1:14-cv-01905-LJO-MJS Plaintiff-Appellant, MEMORANDUM* v. MATTHEW CATE; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted April 7, 2020** Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges. California state prisoner Eric Lynn Brown 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. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. * 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). 2012) (dismissal 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)(B)(ii)). We may affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm. Dismissal of Brown’s claims against Doe defendants and defendants Cate, Clark, Johnson, and Lopez was proper, because it would not have been clear to every reasonable official that Brown’s heightened exposure to Valley Fever was unlawful under the circumstances. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (explaining two-part test for qualified immunity); Hines v. Youseff, 914 F.3d 1218, 1230-35 (9th Cir. 2019) (existing Valley Fever cases did not clearly establish a “right to be free from heightened exposure to Valley Fever spores”). 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). AFFIRMED. 2 17-15113

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