                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         MAR 1 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 GREGORY TYREE BROWN,                             No. 15-35949

                  Plaintiff-Appellant,            D.C. No. 2:13-cv-00130-RMP

   v.
                                                  MEMORANDUM*
 BERNARD WARNER; et al.,

                  Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                          Submitted February 27, 2018 **

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

        Washington state prisoner Gregory Tyree Brown appeals pro se from the

district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional

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

v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (failure to state a claim under Fed. R.



        *
             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).
Civ. P. 12(b)(6)); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004)

(summary judgment). We may affirm on any basis supported by the record, Enlow

v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004), and we affirm.

      The district court properly dismissed Brown’s “denial of self-defense”

claims, retaliation claim based on his complaint of excessive force, and due

process claims because Brown failed to allege facts sufficient to state a plausible

claim. See Hebbe, 627 F.3d at 341–42 (although pro se pleadings are liberally

construed, a plaintiff must still present factual allegations sufficient to state a

plausible claim for relief); see also Sandin v. Conner, 515 U.S. 472, 486 (1995)

(“[S]egregated confinement [does] not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty interest.”);

Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (setting forth elements of

retaliation claim in prisoner context).

      Dismissal of Brown’s retaliation claims based on Brown’s decision not to

press charges or testify was proper because Brown failed to allege facts sufficient

to state a plausible claim. See Brodheim, 584 F.3d at 1269.

      The district court properly granted summary judgment on Brown’s failure-

to-protect claim because Brown failed to raise a genuine dispute of material fact as

to whether defendant Westfall, Shodahl, or Cluever were deliberately indifferent to

his safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (prison official


                                            2                                     15-35949
cannot be found liable under the Eighth Amendment “unless the official knows of

and disregards an excessive risk to inmate health or safety”); Cortez v. Skol, 776

F.3d 1046, 1050 (9th Cir. 2015) (discussing requirements for failure-to-protect

claim).

      The district court correctly granted summary judgment against Brown with

respect to his excessive force claims against defendants Shodahl and Cluever.

Relying in part on video evidence of this incident, the district court found that

Brown failed to raise any genuine disputes of material fact. Viewing the evidence,

including the video recording of the incident, in the light most favorable to Brown,

he failed to raise a triable dispute as to whether Shodahl and Cluever maliciously

and sadistically used force against him. See Hudson v. McMillian, 503 U.S. 1, 7

(1992) (holding that “the core judicial inquiry” in resolving an Eighth Amendment

excessive force claim is “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm”);

Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (a court reviewing a

summary judgment motion must “assume the truth of the evidence set forth by the

nonmoving party”).

      In light of our disposition of Brown’s excessive force claims, any

amendment of Brown’s complaint to allege an excessive force claim against

Officer Flack would be futile. Accordingly, we affirm the denial of Brown’s


                                          3                                     15-35949
motion for leave to file a third amended complaint. See United States ex rel. Lee v.

Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (denial of leave to amend

reviewed for an abuse of discretion); Carvalho v. Equifax Info. Servs., LLC, 629

F.3d 876, 893 (9th Cir. 2010) (futility of amendment reviewed de novo).

      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);

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).

      AFFIRMED.




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