NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAROLD EDWARDS, No. 20-15190

Plaintiff-Appellant, D.C. No. 2:19-cv-05440-DWL-

CDB

v.

JACKSON, Counselor, individual and MEMORANDUM* official capacity; et al.,

Defendants-Appellees,

and

TODD THOMAS, Warden, individual and official capacity,

Defendant.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

* 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). Arizona state prisoner Harold Edwards appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim. Wilhelm v.

Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm.

The district court properly dismissed Edwards’s claim alleging deliberate

indifference to safety because Edwards failed to allege facts sufficient to show that

defendants knew of and disregarded a substantial risk of serious harm to Edwards.

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are liberally construed, a plaintiff must allege facts sufficient to state a

plausible claim); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison

official cannot be held liable for deliberate indifference “unless the official knows

of and disregards an excessive risk to inmate health or safety; the official must

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

risk of serious harm exists, and he must also draw the inference”).

The district court properly dismissed Edwards’s conditions-of-confinement

and right-to-privacy claims arising from cross-gender observations because

Edwards failed to allege facts sufficient to show that the observations amounted to

an unnecessary and wanton infliction of pain, or were not infrequent, casual, or

reasonably related to a legitimate penological interest. See Michenfelder v.

2 20-15190 Sumner, 860 F.2d 328, 333-34 (9th Cir. 1998) (explaining that “prisoners retain a

limited right to bodily privacy” and discussing standard for right-to-privacy claim);

Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (the Eighth Amendment

prohibits only “the unnecessary and wanton infliction of pain”; the court must ask

“if the officials acted with a sufficiently culpable state of mind” and “if the alleged

wrongdoing was objectively harmful enough to establish a constitutional violation”

(citation and internal quotation marks omitted)).

We do not consider Edwards’s equal protection claim because Edwards did

not replead this claim in the operative first amended complaint. See Lacey v.

Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (claims dismissed

with leave to amend are waived if not repled).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 20-15190