                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 21 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


LAURICE McCURDY,                                 No. 13-16270

               Plaintiff - Appellant,            D.C. No. 2:08-cv-01742-PMP-
                                                 PAL
  v.

LEROY KIRKEGARD,                                 MEMORANDUM*

               Appellee,

LISA ALVAREZ, Officer; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                            Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Nevada state prisoner Laurice McCurdy appeals pro se from the district

court’s judgment in his action brought under 42 U.S.C. § 1983 and Bivens v. Six

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

alleging that defendants committed numerous constitutional violations while

McCurdy was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo. Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011) (dismissal

for failure to state a claim); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)

(summary judgment). We affirm.

      The district court properly granted summary judgment on McCurdy’s

excessive force claim against defendants Neiman, Alvarez, and Cobb because

McCurdy failed to raise a genuine dispute of material fact as to whether those

defendants used force maliciously and sadistically for the purpose of causing harm.

See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (Eighth Amendment excessive

force inquiry “ultimately turns on whether force was applied in a good faith effort

to maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm” (citation and internal quotation marks omitted)); see also

Frost, 152 F.3d at 1128 (applying Eighth Amendment standards to analyze pretrial

detainee’s rights).

      The district court properly dismissed McCurdy’s claim alleging that

defendant Kirkegard failed to provide safe conditions and denied him medical care

because McCurdy failed to allege Kirkegard’s personal involvement in any


                                           2                                     13-16270
constitutional violation or a causal connection between his conduct and any such

violation. See Starr, 652 F.3d at 1207 (“A defendant may be held liable as a

supervisor under § 1983 if there exists either (1) his or her personal involvement in

the constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” (citation and

internal quotation marks omitted)).

      The district court properly dismissed McCurdy’s claim alleging that

defendant Fisher subjected him to continuous transfers between facilities, denied

him medical care, and improperly used a black box to restrain him because

McCurdy failed to allege that Fisher had the authority to make transfer or medical

decisions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive a motion to

dismiss, a plaintiff must allege facts that “allow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged”); Pareto v. FDIC,

139 F.3d 696, 699 (9th Cir. 1998) (“[C]onclusory allegations of law and

unwarranted inferences are not sufficient to defeat a motion to dismiss.”). Nor did

McCurdy allege that Fisher used restraints maliciously and sadistically for the

purpose of causing harm. See Whitley, 475 U.S. at 320-21.

      The district court did not abuse its discretion in denying McCurdy’s motion

for appointment of counsel because McCurdy failed to demonstrate exceptional


                                           3                                     13-16270
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and explaining the “exceptional circumstances”

requirement).

      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) (per curiam).

      AFFIRMED.




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