                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                       AUG 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MARK A. BLANKENSHIP,                            No. 16-15862

                Plaintiff-Appellant,            D.C. No. 1:14-cv-00168-LEK-KJM

 v.
                                                MEMORANDUM*
D. SHINN, Warden; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Mark. A. Blankenship, a federal prisoner, appeals pro se from the district

court’s summary judgment and dismissal order in his action under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging deliberate indifference to his serious medical needs while he was a pretrial



      *
             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).
detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both

the district court’s dismissal for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6) and summary judgment. Doe v. Abbott Labs., 571 F.3d 930,

933 (9th Cir. 2009). We affirm.

      The district court properly granted summary judgment for Warden Shinn

because, under any potentially applicable standard, Blankenship failed to raise a

genuine dispute of material fact as to whether Warden Shinn knew of or

disregarded an excessive risk to Blankenship’s back problem. See Bell v. Wolfish,

441 U.S. 520, 535 (1979) (in considering the conditions of pretrial detention,

courts consider whether the conditions amount to punishment); Toguchi v. Chung,

391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official acts with deliberate

indifference only if the official knows of and disregards an excessive risk to a

prisoner’s health); c.f. 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).

      The district court properly dismissed Blankenship’s claim against Shellko

because, under any potentially applicable standard, Blankenship failed to allege

facts sufficient to show that Shellko knew of or disregarded an excessive risk to

Blankenship’s back problem. See Bell, 441 U.S. at 535; Toguchi, 391 F.3d at

1057; c.f. Castro, 833 F.3d at 1071.


                                           2                                    16-15862
      The district court did not abuse its discretion in denying Blankenship’s

motion for default judgment because defendants had not yet been properly served

at the time of Blankenship’s motion. See Benny v. Pipes, 799 F.2d 489, 492 (9th

Cir. 1986) (setting forth standard of review and noting that a court is without

jurisdiction unless there has been proper service).

      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).

      AFFIRMED.




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