FILED

NOT FOR PUBLICATION APR 16 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR WILLIAMS, Jr., No. 13-15426

Plaintiff - Appellant, D.C. No. 2:09-cv-01979-KJD

v.

MEMORANDUM*

STEVEN TURNER; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted April 7, 2014**

Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.

Nevada state prisoner Oscar Williams, Jr., appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging Eighth Amendment

violations, among other claims. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a

* 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). claim. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). We may affirm on

any ground supported by the record. Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part, reverse in part, and

remand.

Dismissal of Williams’s claim against defendant Turner was proper because

Williams failed to allege facts in his second amended complaint showing that

Turner had a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S.

825, 837 (1994) (for a deliberate indifference claim, “the official must both be

aware of the facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference”); see also County of

Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (“[W]here a particular Amendment

provides an explicit textual source of constitutional protection against a particular

sort of government behavior, that Amendment, not the more generalized notion of

substantive due process, must be the guide for analyzing these claims.” (citations

and internal quotation marks omitted)); Hebbe, 627 F.3d at 341-42 (though pro se

pleadings are to be liberally construed, a plaintiff must still present factual

allegations sufficient to state a plausible claim for relief).

However, liberally construed, Williams stated a cognizable Eighth

Amendment claim against defendant Hanke, a corrections officer, by alleging that

2 13-15426 on a particular date, Hanke struck Williams’s hand with a hard brush, without

cause, causing permanent damage to his finger. See Hudson v. McMillian, 503

U.S. 1, 6-7 (1992) (standard for evaluating a claim of excessive force). Williams

also stated a cognizable Eighth Amendment claim against Donat, warden of the

prison, by alleging that Donat knew of Hanke’s history of violence and propensity

to physically abuse inmates but failed to take reasonable steps to protect them from

him. See Farmer, 511 U.S. at 837 (standard for evaluating deliberate indifference

claim); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for

supervisory deliberate indifference). Accordingly, we reverse and remand for

further proceedings as to Williams’s Eighth Amendment claims against Hanke and

Donat.

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).

The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

3 13-15426 Williams v. Turner, No. 13-15426

IKUTA, Circuit Judge, dissenting:

I dissent as to defendant Donat because, under the standard set forth in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), Williams’s complaint fails to state a claim

against Donat. See id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)) (“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’”).

4 13-15426