                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 GREGORY ELL SHEHEE,                             No. 16-15831

                  Plaintiff-Appellant,           D.C. No. 1:14-cv-00005-LJO-DLB

   v.
                                                 MEMORANDUM*
 PAMELA AHLIN; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                    Lawrence J. O’Neill, Chief Judge, Presiding

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Gregory Ell Shehee appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging various constitutional violations

arising from his time as a pre-commitment civil detainee and civilly committed

Sexually Violent Predator. We have jurisdiction under 28 U.S.C. § 1291. We

        *
             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).
review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A.

Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm in part,

reverse in part, and remand.

      The district court properly dismissed Shehee’s First Amendment free

exercise claim because Shehee failed to allege facts sufficient to show that any

defendant’s actions substantially burdened his practice of religion. See Jones v.

Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) (requirements for First Amendment

free exercise claim).

      The district court properly dismissed Shehee’s claim for denial of access to

the courts because Shehee failed to allege facts sufficient to show he suffered an

actual injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (requirements

for denial of access to courts claim).

      The district court properly dismissed Shehee’s claims of constitutionally

inadequate medical care against defendants Ahlin, King, Sanduh, and Waggoner

because he failed to allege facts sufficient to show these defendants personally

participated in the alleged rights deprivation. See Jones, 297 F.3d at 934 (outlining

requirement of personal participation in alleged constitutional deprivation). The

district court properly dismissed Shehee’s claim of constitutionally inadequate

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medical care against Dr. Nguyen arising out of the events following Shehee’s

surgery in April 2014 because he failed to allege facts sufficient to show Dr.

Nguyen’s decisions during that time were a “substantial departure from accepted

professional judgment, practice, or standards.” Youngberg v. Romero, 457 U.S.

307, 323 (1982).

      However, dismissal of Shehee’s claim of constitutionally inadequate medical

care against Drs. Tur and Nguyen arising from events occurring prior to Shehee’s

surgery in April 2014 was premature. Shehee alleged these defendants knew

Shehee’s wrist was fractured yet failed to treat it, other than prescribing him

Tylenol and Motrin, for over one year. Liberally construed, these allegations were

“sufficient to warrant ordering [defendants] to file an answer,” Wilhelm, 680 F.3d

at 1116, because under any potentially applicable standard they state a claim of

constitutionally inadequate medical care. See Toguchi v. Chung, 391 F.3d 1051,

1057 (9th Cir. 2004) (a prison official is deliberately indifferent if he or she knows

of and disregards an excessive risk to an inmate’s health); see also Jones v. Blanas,

393 F.3d 918, 932 (9th Cir. 2004) (pre-commitment civil detainees entitled to

protections at least as great as individuals accused but not convicted of a crime);

Youngberg, 457 U.S. at 323 (standard for conditions of confinement claim

                                          3                                       16-15831
applicable to civilly committed individuals). Accordingly, we reverse and remand

for further proceedings as to this claim.

      The district court did not abuse its discretion in declining to grant Shehee

leave to file a Fourth Amended Complaint. See Chappel v. Lab. Corp., 232 F.3d

719, 725 (9th Cir. 2000) (“A district court acts within its discretion to deny leave to

amend when amendment would be futile . . .”); Chodos v. West Publ’g Co., 292

F.3d 992, 1003 (9th Cir. 2002) (district court’s discretion “particularly broad”

when it has already granted a plaintiff leave to amend).

      We reject as without merit Shehee’s contentions concerning his declination

of the jurisdiction of the magistrate judge.

      AFFIRMED in part, REVERSED in part and REMANDED.




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