                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 29 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MARC ANTHONY LOWELL                              No. 10-56323
ENDSLEY,
                                                 D.C. No. 2:06-cv-06961-DSF-SS
               Plaintiff - Appellant,

  v.                                             MEMORANDUM *

OCTAVIO LUNA; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Marc Anthony Lowell Endsley, who is committed to a state psychiatric

hospital facility, appeals pro se from the district court’s summary judgment in his

42 U.S.C. § 1983 action arising from his former hospital’s treatment program and


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
its requirement that patients remain in a common room if they choose not to

participate in treatment sessions. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo, Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009), and

we affirm.

      The district court properly granted summary judgment on Endsley’s

inadequate mental health treatment claim arising from the revocation of some of

his privileges because he failed to raise a genuine dispute of material fact as to

whether this decision by his treatment team was “a substantial departure from

accepted professional judgment, practice, or standards.” Youngberg v. Romeo, 457

U.S. 307, 323 (1982) (decisions by mental healthcare professionals are

“presumptively valid”).

      The district court properly granted summary judgment on Endsley’s

excessive force claim because he failed to raise a genuine dispute of material fact

as to whether the force used was reasonable under the circumstances and did not

amount to punishment. See Hydrick v. Hunter, 500 F.3d 978, 997 (9th Cir. 2007)

(Fourteenth Amendment applies to excessive force claims by civilly committed

individuals, which requires that they not be subjected to conditions that amount to

punishment, within the bounds of professional discretion), vacated on other

grounds, 129 S.Ct. 2431 (2009); see also Graham v. Connor, 490 U.S. 386, 395


                                           2                                     10-56323
n.10 (1989) (Fourteenth Amendment protects a pretrial detainee from excessive

force amounting to punishment).

      The district court properly granted summary judgment on Endsley’s

conditions of confinement claim because he failed to raise a genuine dispute of

material fact as to whether conditions in the common room, where those patients

who chose not to participate in treatment sessions were temporarily held, amounted

to punishment. See Bell v. Wolfish, 441 U.S. 520, 537 (1979) (some losses of

freedom of movement and choice are inherent discomforts of confinement, and not

every disability imposed during detention “amounts to ‘punishment’ in the

constitutional sense”).

      Endsley’s remaining contentions, including those regarding his state law tort

claims, are unpersuasive.

      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)

(per curiam).

      AFFIRMED.




                                         3                                   10-56323
