NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARIUS JOSHUA HATHAWAY, AKA Lil No. 18-35976 Havoc, AKA Quick, D.C. No. 2:18-cv-01413-SI Plaintiff-Appellant,

v. MEMORANDUM*

J. VANDEVER; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Oregon state prisoner Darius Joshua Hathaway appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a failure-

to-protect claim. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal for

* 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). failure to state a claim under 28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d

1108, 1112 (9th Cir. 2012) (dismissal for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii)). We affirm.

The district court properly dismissed Hathaway’s action because Hathaway

failed to allege facts sufficient to show that defendants were deliberately

indifferent to a substantial risk of harm to Hathaway during his altercation with

another inmate. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (to state an

Eighth Amendment failure-to-protect claim, an inmate must allege that the

deprivation was “objectively, sufficiently serious” and defendants were

deliberately indifferent to a substantial risk of harm); see also id. at 837 (a prison

official is deliberately indifferent if the prison official “knows of and disregards an

excessive risk to inmate health or safety”).

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 18-35976