                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAY 10 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 HYRUM JOSEPH WEST,                              No. 15-16913

                  Plaintiff-Appellant,           D.C. No. 2:13-cv-00271-APG-
                                                 VCF
   v.

 NYE COUNTY DETENTION; et al.,                   MEMORANDUM*

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Andrew P. Gordon, District Judge, Presiding

                              Submitted May 8, 2017**

Before:       REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

        Hyrum Joseph West, a former pretrial detainee, appeals pro se from the

district court’s summary 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. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may affirm on

        *
             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).
any basis supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 389

F.3d 802, 811 (9th Cir. 2004). We affirm in part, vacate in part, and remand.

      Summary judgment was proper on West’s medical deliberate indifference

claim because under any potentially applicable standard, West failed to raise a

genuine dispute of material fact as to whether defendants “kn[ew] of and

disregard[ed] an excessive risk to [West’s] health and safety.” Toguchi, 391 F.3d

at 1057-58 (neither a prisoner’s difference of opinion concerning the course of

treatment nor mere negligence in treating a medical condition amounts to

deliberate indifference); Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir.

2003) (pretrial detainee’s claim of medical deliberate indifference is analyzed

under the Fourteenth Amendment Due Process Clause rather than under the Eighth

Amendment, but same standards apply); see also Castro v. County of Los Angeles,

833 F.3d 1060, 1067-71 (9th Cir. 2016) (en banc) (setting forth elements of

Fourteenth Amendment failure-to-protect claim by pretrial detainee); Starr v.

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (supervisory liability under § 1983

requires “knowledge of and acquiescence in unconstitutional conduct” by

subordinates).

      Summary judgment was proper on West’s conditions-of-confinement claim

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against defendants Demeo, Marshall, and Rising in their individual capacities

because West failed to raise a triable dispute as to whether these defendants

“kn[ew] of and disregard[ed] an excessive risk to [his] health or safety . . . .”

Farmer v. Brennan, 511 U.S. 825, 837 (1970) (“[T]he 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.”).

      Summary judgment was proper on West’s conditions-of confinement claim

against defendants Nye County and Demeo, Marshall, and Rising in their official

capacities with regard to alleged policies or customs of (1) not medically screening

for contagious diseases and (2) delaying medical treatment for pretrial detainees

because West failed to raise a triable dispute as to whether defendants had in place

such policies or customs. See Castro, 833 F.3d at 1073-76 (discussing

requirements to establish municipal liability under Monell v. Department of Social

Services, 436 U.S. 658 (1978)).

      However, West raised a triable dispute as to whether defendants Nye County

and Demeo, Marshall, and Rising in their official capacities had a policy or custom

of using the old Pahrump jail during construction of the new jail facility despite

allegedly inhumane conditions due to rust, black mold, and asbestos. Defendants’

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discovery responses indicating that individual defendants were unaware of any

inhumane conditions at the old Pahrump jail were insufficient to demonstrate the

absence of a triable dispute as to whether Nye County’s policy or custom caused

injury to West and whether the policy or custom reflected deliberate indifference to

West’s constitutional rights. See id. at 1076 (“[T]he deliberate indifference

standard for municipalities is always an objective inquiry.”); see also Monell, 436

U.S. at 690 n.55 (official capacity suits “represent only another way of pleading an

action against an entity of which an officer is an agent”). We vacate the judgment

in part and remand for further proceedings on this claim only.

      The district court did not abuse its discretion by denying West’s motion for

leave to amend to add members of the Nye County Board of County

Commissioners as defendants. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir.

2010) (setting forth standard of review and factors for permitting leave to amend).

      The district court did not clearly err by affirming the magistrate judge’s

order denying West’s motions to compel discovery and for leave to expand the

interrogatory limit. See Osband v. Woodford, 290 F.3d 1036, 1042 (9th Cir. 2002)

(setting forth standard of review).

      West forfeited his opportunity to appeal the denial of his motion for

                                          4                                     15-16913
extension of time for discovery and “motion for discovery” because he did not file

any objections to the magistrate judge’s order. See Simpson v. Lear Astronics

Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (“[A] party who fails to file timely

objections to a magistrate judge’s nondispositive order with the district judge to

whom the case is assigned forfeits its right to appellate review of that order.”).

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

in the opening brief, or arguments and allegations raised for the first time on

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

      In sum, we vacate summary judgment only on West’s conditions-of-

confinement claim against defendants Nye County and Demeo, Marshall, and

Rising in their official capacities, based on the alleged policy or custom of using

the old Pahrump jail during construction of the new jail facility despite allegedly

inhumane conditions due to rust, black mold, and asbestos. The district court may

wish to reconsider its discovery rulings in light of our determination. In all other

respects, we affirm.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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