JON POWELL V. WELL PATH CARE, ET AL, No. 22-35242 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 19 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JON PAUL POWELL, U.S. COURT OF APPEALS No. 22-35242 Plaintiff-Appellant, v. D.C. No. 6:20-cv-01934-IM MEMORANDUM* WELL PATH CARE, Jail Deputy, STEPHANIE RIDGELY, Provider and Nurse, JOSH O’HARA, Nurse, MRS. GARDNER, Nurse, and DEPUTY MCCLURE, Jail Deputy, Defendants-Appellees. 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 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 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). 2 22-35242 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. 3 22-35242
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