                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 01 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JONATHAN HERRERA, an individual,                 No. 11-55078

              Plaintiff - Appellant,             D.C. No. 2:09-cv-07359-PSG-CW

  v.
                                                 MEMORANDUM *
COUNTY OF LOS ANGELES, a
municipal entity; LOS ANGELES
COUNTY PROBATION DEPARTMENT,
a municipal entity; MIKELL BALLOU;
TYRONE PERRY; MARCILA
CHAPMAN; RANDY HERBON; JACK
MORENO; DEPUTY BARLOW; BURT
TODD; ROBERT TAYLOR; RICHARD
SAENZ; FRANCESCA B. JONES;
SAMUEL RODRIGUEZ; GERALD
ESPINOZA; CHARLES HARTARCYCH,
PEARL SALCIDO, as individuals,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted May 9, 2012
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.


      Plaintiff-Appellant Jonathan Herrera (“Jonathan”) appeals the district court’s

dismissal of his Third Amended Complaint for failure to state a claim. See Fed. R.

Civ. P. 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in

part, reverse in part, and remand for further proceedings.1

      1. The district court did not err in dismissing Jonathan’s claims against

Defendants Barlow and Ballou. Jonathan’s Third Amended Complaint fails to

state a cause of action against these defendants for deliberate indifference because

there is no factual allegation that “plausibly suggests,” Iqbal, 556 U.S. at 683, that

these defendants knew of and disregarded “an excessive risk to inmate health or

safety,” Farmer v. Brennan, 511 U.S. 825, 837 (1994).



      1
        “We review de novo a district court’s dismissal of a complaint under
[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim.” Starr v.
Baca, 652 F.3d 1202, 1205 (9th Cir. 2011), cert. denied, 80 U.S.L.W. 3613 (U.S.
Apr. 30, 2012) (No. 11-834). “‘To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d
806, 812 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The facts in the complaint must be accepted as true and are construed in the light
most favorable to the plaintiff. AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d
631, 636 (9th Cir. 2012). In ruling on a motion to dismiss, the court may consider
documents that are attached to the complaint. Lee v. City of Los Angeles, 250 F.3d
668, 688-89 (9th Cir. 2001).

                                           2
       2. The district court erred in dismissing Jonathan’s claim against Defendant

Espinoza. Jonathan’s Third Amended Complaint and the accompanying

attachments, “plausibly suggest[],” Iqbal, 556 U.S. at 683, that Espinoza knew of

and disregarded “an excessive risk to inmate health or safety,” Farmer, 511 U.S. at

837.

       Espinoza testified at a deposition that, after hearing another juvenile say to

Jonathan, “Hey, man, there’s a snake over there where you’re sitting,” Espinoza

“turned around to look and see if the snake was really there.” He testified that he

did not “recall seeing a snake” – that is, that he could not remember whether, when

he turned around to look for a snake he, in fact, saw one. He also testified that he

could not recall whether he asked any additional questions of the boy who said he

had seen the snake. A reasonable jury could find implausible Espinoza’s testimony

that he could not remember whether he had seen a snake or whether he had made

any inquiries about it and therefore infer that he was lying. Given this inference, a

jury could find that Espinoza did see a snake and yet deliberately ignored the

danger.

       Thus, Jonathan’s complaint and the accompanying attachments plausibly

suggest that: (1) Espinoza walked outside of the administration building and

observed Jonathan sitting on the steps of the administration building approximately


                                           3
ten minutes before Jonathan was bitten by a rattlesnake; (2) Espinoza heard another

minor yell at Jonathan, “Hey, man, there’s a snake over there where you’re

sitting”; (3) Espinoza saw the snake next to Jonathan; (4) Camp Paige policy

required Jonathan to remain in the area where he was sitting until a probation

deputy or some other staff member released him; and, (5) Espinoza did not instruct

Jonathan to move to another location. Because Jonathan’s Third Amended

Complaint and accompanying attachments plausibly suggest that Espinoza knew

Jonathan was sitting in close proximity to a potentially poisonous snake, and did

nothing, we reverse the district court’s dismissal of Jonathan’s claim against

Espinoza.

      3. Jonathan does not argue in his opening or reply briefs that the district

court erred in dismissing his claims against Defendants Perry, Chapman, Herbon,

Moreno, Todd, Taylor, Saenz, Jones, Rodriguez, Hartarcych, and Salcido.

Accordingly, we affirm the district court’s dismissal of Jonathan’s claims against

these defendants. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005)

(“Generally, an issue is waived when the appellant does not specifically and

distinctly argue the issue in his or her opening brief.”).

      4. The district court did not err in dismissing Jonathan’s claims against the

County of Los Angeles and the Los Angeles County Probation Department


                                            4
(collectively “the County”). Jonathan’s claim that the County had a “policy or

practice” of failing to warn minors about snakes is not plausible as this allegation

is repeatedly contradicted by other allegations in Jonathan’s complaint and the

attachments to Jonathan’s complaint. Jonathan’s claim that the County is liable for

failing to train its employees is also not plausible on its face, as there is no

allegation that suggests County policymakers had “actual or constructive notice”

that its policies were deficient. See Connick v. Thompson, 131 S. Ct. 1350, 1360

(2011) (holding that, to prevail on a “failure-to-train” allegation against a

municipality, a plaintiff must prove that the municipality’s policymakers were on

“actual or constructive notice that a particular omission in their training program”

caused the municipality’s employees “to violate citizens’ constitutional rights”).

      5. Jonathan argues that, because he was a juvenile at the time of the

rattlesnake bite, his “allegations of unconstitutional conditions of confinement are

governed by the more protective standard of the Fourteenth Amendment, rather

than the [Eighth] Amendment.” Because Jonathan has failed to identify how the

analysis would be any different under the Fourteenth Amendment, we decline to

address this issue.




                                            5
      The district court’s dismissal of Jonathan’s claim against Defendant

Espinoza is REVERSED. The district court’s dismissal of Jonathan’s claims

against the remaining defendants is AFFIRMED. We REMAND this case to

the district court for proceedings consistent with this disposition. Each party

shall bear its own costs on appeal.




                                       6
