NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRYL BURGHARDT, 

Plaintiff-Appellant, 

 v. 

L. BORGES; J. RENTERIA; J. 

GUERRERO; K. CRIBBS; D. GOREE, Jr.; 

R. BROOMFIELD; F. MONTOYA; M. 

SEXTON; GONZALES; D. OSUMA; A. V. 

JOHNSON, 

Defendants-Appellees.

No. 21-15736 

D.C. No. 1:17-cv-01433-AWI-GSA 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Submitted March 14, 2023**

Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.

California state prisoner Darryl Burghardt appeals pro se from the district 

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

* 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

MAR 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-15736 

force and deliberate indifference to his serious medical needs. We have 

jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 

F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii));

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. 

§ 1915A). We affirm.

The district court properly dismissed Burghardt’s Eighth Amendment claims

because Burghardt failed to allege facts sufficient to show that defendants 

physically engaged with and used pepper spray on him “maliciously and 

sadistically for the very purpose of causing harm” or knew of and disregarded an 

excessive risk to his health and safety in providing medical treatment and

decontamination procedures. See Clement v. Gomez, 298 F.3d 898, 903-904 (9th 

Cir. 2002) (citation omitted) (discussing Eighth Amendment excessive force and 

medical deliberate indifference claims); see also Hebbe v. Pliler, 627 F.3d 338, 

341–42 (9th Cir. 2010) (though pro se pleadings are to be liberally construed, a 

plaintiff must present factual allegations sufficient to state a plausible claim for 

relief). 

The district court did not abuse its discretion in dismissing without prejudice 

Burghardt’s claims that did not arise “out of the same transaction, occurrence, or 

series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2) (joinder of parties); 
3 21-15736 

see also Fed. R. Civ. P. 18(a) (joinder of claims); United States v. Bowen, 172 F.3d 

682, 688 (9th Cir. 1999) (standard of review).

The district court did not abuse its discretion in dismissing the second 

amended complaint without further leave to amend after notifying Burghardt of the 

deficiencies in his pleadings, advising him how to correct them, and affording him 

multiple opportunities to amend his complaint. See Nguyen v. Endologix, Inc., 962 

F.3d 405, 420 (9th Cir. 2020) (“[W]here the plaintiff has previously been granted 

leave to amend and has subsequently failed to add the requisite particularity to its 

claims, the district court’s discretion to deny leave to amend is particularly broad.”

(citation omitted)).

We reject as meritless Burghardt’s contention that the district court should 

have reviewed a separate complaint containing unrelated claims that Burghardt 

filed alongside his first amended complaint. 

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.