NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAROLD EDWARDS, 

Plaintiff-Appellant, 

 v. 

JACKSON, Counselor, individual and 

official capacity; et al., 

Defendants-Appellees, 

and 

TODD THOMAS, Warden, individual and 

official capacity, 

Defendant.

No. 20-15190 

D.C. No. 2:19-cv-05440-DWLCDB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Dominic Lanza, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. 

* 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).

FILED

JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-15190 

Arizona state prisoner Harold Edwards appeals pro se from the district 

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

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim. Wilhelm v. 

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

The district court properly dismissed Edwards’s claim alleging deliberate 

indifference to safety because Edwards failed to allege facts sufficient to show that 

defendants knew of and disregarded a substantial risk of serious harm to Edwards. 

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se 

pleadings are liberally construed, a plaintiff must allege facts sufficient to state a 

plausible claim); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison 

official cannot be held liable for deliberate indifference “unless the official knows 

of and disregards an excessive risk to inmate health or safety; the official must 

both be aware of facts from which the inference could be drawn that a substantial 

risk of serious harm exists, and he must also draw the inference”).

The district court properly dismissed Edwards’s conditions-of-confinement

and right-to-privacy claims arising from cross-gender observations because 

Edwards failed to allege facts sufficient to show that the observations amounted to 

an unnecessary and wanton infliction of pain, or were not infrequent, casual, or 

reasonably related to a legitimate penological interest. See Michenfelder v. 
3 20-15190 

Sumner, 860 F.2d 328, 333-34 (9th Cir. 1998) (explaining that “prisoners retain a 

limited right to bodily privacy” and discussing standard for right-to-privacy claim); 

Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (the Eighth Amendment 

prohibits only “the unnecessary and wanton infliction of pain”; the court must ask 

“if the officials acted with a sufficiently culpable state of mind” and “if the alleged 

wrongdoing was objectively harmful enough to establish a constitutional violation”

(citation and internal quotation marks omitted)). 

We do not consider Edwards’s equal protection claim because Edwards did 

not replead this claim in the operative first amended complaint. See Lacey v. 

Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (claims dismissed 

with leave to amend are waived if not repled).

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.