NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYAN P. BONHAM, No. 19-17576

Plaintiff-Appellant, D.C. No. 3:17-cv-00727-RCJ-CLB

v.

MEMORANDUM*

KIM ADAMSON, Doctor at LCC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

Nevada state prisoner Bryan P. Bonham appeals pro se from the district

court’s judgment dismissing his action alleging constitutional claims and claims

under the Americans with Disabilities Act (“ADA”). We have jurisdiction under

28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A 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. Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015).

We affirm in part, vacate in part, and remand.

We affirm the dismissal of Bonham’s constitutional claims because Bonham

has not challenged the dismissal of those claims on appeal. See Smith v. Marsh,

194 F.3d 1045, 1052 (9th Cir. 1999) (arguments not raised by a party in the

opening brief are deemed waived).

However, dismissal of Bonham’s ADA claim without leave to amend was

premature because it is not “absolutely clear” that any deficiencies could not be

cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)

(en banc) (leave to amend should be given unless the deficiencies in the complaint

cannot be cured by amendment). Bonham alleged a physical impairment of his

lower back which at times caused him difficultly walking and impaired his ability

to sit or stand for long periods of time. With some direction from the district court,

Bonham may be able to allege the required elements. See Thompson v. Davis, 295

F.3d 890, 895-6 (9th Cir. 2002) (elements of a Title II claim under the ADA;

disability under the ADA is defined as a physical or mental impairment that

substantially limits one or more major life activities); see also Akhtar v. Mesa, 698

F.3d 1202, 1212 (9th Cir. 2012) (before dismissing a pro se complaint, the district

court must provide the litigant notice of the deficiencies to allow the litigant an

2 19-17576 opportunity to amend effectively). We vacate the judgment in part, and remand for

the district court to provide Bonham with an opportunity to amend his ADA claim.

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 in part, VACATED in part, and REMANDED.

3 19-17576