                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SHAKA, AKA Timothy L. Malumphy,                 No.    15-15486

                Plaintiff-Appellant,            D.C. No. 2:10-cv-02253-SMM

 v.
                                                MEMORANDUM*
CHARLES L. RYAN, named as Chuck
Ryan, Director, AZ Department of
Corrections at Central Office, Phoenix, AZ;
DENNIS G. CHENAIL, named as Dennis
Chenail; Facility Health Adminstrator at
Yuma Complex, San Luis, AZ,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                 Stephen M. McNamee, District Judge, Presiding

                            Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Arizona state prisoner Shaka, AKA Timothy L. Malumphy, appeals pro se

from the district court’s summary judgment and dismissal order in his 42 U.S.C.


      *
             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).
§ 1983 action alleging various constitutional claims. We have jurisdiction under

28 U.S.C. § 1291. We review de novo, and may affirm on any ground supported

by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008). We affirm.

      Dismissal of Count I alleging ex post facto, due process and equal protection

claims was proper because success on these claims would necessarily imply the

invalidity of Shaka’s sentence, and Shaka failed to allege that his sentence had

been invalidated. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (if “a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence . . . the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated”); see

also El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (“When a

prisoner challenges the fact or duration of his confinement, the sole federal remedy

is a writ of habeas corpus.”).

      The district court properly granted summary judgment on Shaka’s medical

deliberate indifference claim because Shaka failed to raise a genuine dispute of

material fact as to whether defendant Chenail was deliberately indifferent in his

response to Shaka’s request for orthopedic care, and whether defendant Ryan knew

of Shaka’s medical needs and acted with conscious disregard. See Farmer v.

                                          2                                   15-15486
Brennan, 511 U.S. 825, 837 (1994) (a prison official cannot be liable under the

Eighth Amendment “unless the official knows of and disregards an excessive risk

to inmate health or safety”); Peralta v. Dillard, 744 F.3d 1076, 1084 (9th

Cir. 2014) (en banc) (“A prison medical official who fails to provide needed

treatment because he lacks the necessary resources can hardly be said to have

intended to punish the inmate.”).

      The district court properly granted summary judgment on Shaka’s Eighth

Amendment failure-to-protect claim against defendants Benavidez and Felkins

because Shaka failed to raise a genuine dispute of material fact as to whether these

defendants acted with deliberate indifference to his safety. See Farmer, 511 U.S.

at 837.

      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).

      AFFIRMED.




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