NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNY STEWARD, No. 20-15680

Plaintiff-Appellant, D.C. No. 1:18-cv-00551-AWI-

BAM

v.

NGOZI ONYINYA IGBINOSA, Primary MEMORANDUM* Care Physician; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

California state prisoner Donny Steward appeals pro se from the district

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

indifference to his serious medical needs and other federal and state law violations.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

* 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). court’s dismissal under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113,

1118 (9th Cir. 2012). We affirm in part, reverse in part, and remand.

The district court dismissed Steward’s Eighth Amendment claims because

Steward failed to allege facts sufficient to state a plausible claim. However,

Steward alleged that on September 16, 2014, he was denied medical treatment by

several defendants despite lying on the ground in extreme pain. After another

prison official facilitated getting Steward into the medical center, Steward was

made to wait three hours and eventually injected with an unidentified substance

which did not alleviate his pain. Steward also alleged that on October 25, 2014,

Dr. Ngozi Onyinya Igbinosa deliberately caused him injury by holding him

immobile and scraping her fingernail down his forearm and hand which caused

extreme pain due to Steward’s medical conditions. In addition, Steward alleged

that nurses (including defendants Faria and Nelson) denied him access to treatment

for his diabetes-related conditions for nine months despite Steward’s repeated

efforts to obtain medical assistance, and that as a result he suffered harm including

extreme pain, swelling, loss of muscle mass, and feeling. Steward provided some

specific dates he was turned away (e.g., September 14, 15, 16, 21, and 22 of 2014)

and alleged that he made seven other attempts to be seen. Finally, Steward alleged

that defendants J. Lewis, Director of Policy and Risk Management Services, and

Brightwell, Captain on the Second Watch Yard, were aware that he was being

2 20-15680 denied access to medical care but did nothing to assist him. These allegations,

liberally construed, are “sufficient to warrant ordering [defendants] to file an

answer.” Id. at 1116.

In his opening brief, Steward fails to address the grounds for dismissal

regarding his claims under the First and Fourteenth Amendments and state law and

has therefore waived his challenge to this portion 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) (issues not

supported by argument in pro se appellant’s opening brief are waived).

In sum, we affirm the judgment as to Steward’s claims under the First and

Fourteenth Amendments and state law, reverse the judgment as to Steward’s

Eighth Amendment claims, and remand to the district court to proceed with service

of process for Steward’s Eighth Amendment claims only.

We reject as without merit Steward’s contention that his First Amendment

and due process rights were violated by the district court’s dismissal of his action.

AFFIRMED in part, REVERSED in part, and REMANDED.

3 20-15680