                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 22 2014

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



                             FOR THE NINTH CIRCUIT


MATTHEW A. DuBOIS,                               No. 13-16031

               Plaintiff - Appellant,            D.C. No. 3:12-cv-00415-MMD-
                                                 VPC
  v.

WASHOE COUNTY SHERIFF’S                          MEMORANDUM*
OFFICE; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Miranda Du, District Judge, Presiding

                            Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

       California state prisoner Matthew A. DuBois appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs while detained in a Nevada jail. We have


          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal for failure to state a claim. Hamilton v. Brown, 630 F.3d 889, 892 (9th

Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Hebbe v. Pliler, 627 F.3d 338,

341-42 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.

      The district court properly dismissed DuBois’s claim against defendant

Dr. Hahn because DuBois failed to allege facts sufficient to show that Dr. Hahn

acted with deliberate indifference in treating his foot injury. See Toguchi v. Chung,

391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (deliberate indifference is a high legal

standard, and is met only if the prison official knows of and disregards an

excessive risk to the prisoner’s health; medical malpractice or negligence is

insufficient to establish an Eighth Amendment violation); see also Starr v. Baca,

652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for supervisory liability under

§ 1983); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)

(the Eighth Amendment standard applies to pretrial detainees alleging cruel and

unusual punishment in violation of the Fourteenth Amendment).

      The district court properly dismissed DuBois’s claim against defendants

Washoe County Sheriff’s Office and Prison Health Services because DuBois failed

to allege facts sufficient to show that he was harmed by a policy or custom. See

Jackson v. Barnes, 749 F.3d 755, 762-64 (9th Cir. 2014) (requirements for alleging


                                          2                                     13-16031
municipal liability under § 1983); Tsao v. Desert Palace, Inc., 698 F.3d 1128,

1138-39 (9th Cir. 2012) (requirements for municipal liability apply to private

entities sued under § 1983).

      To the extent that DuBois challenges the district court’s order staying

discovery, the court did not abuse its discretion because DuBois failed to describe

the discovery he sought. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)

(setting forth the standard of review and describing trial court’s broad discretion to

deny discovery).

      AFFIRMED.




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