Mark A. Blankenship, Pro Se

Thomas A. Helper, Assistant U.S. Attorney, DOJ—Office of the US Attorney, Honolulu, HI, for Defendants-Appellees

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

MEMORANDUM **

Mark. A. Blankenship, a federal prisoner, appeals pro se from the district court’s summary judgment and dismissal order in his action under

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging deliberate indifference to his serious medical needs while he was a pretrial detainee. We have jurisdiction under 28 U.S.C. § 1291. We review de novo both the district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and summary judgment.

Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

The district court properly granted summary judgment for Warden Shinn because, under any potentially applicable standard, Blankenship failed to raise a genuine dispute of material fact as to whether Warden Shinn knew of or disregarded an excessive risk to Blankenship’s back problem. See

Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)(in considering the conditions of pretrial detention, courts consider whether the conditions amount to punishment);

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official acts with deliberate indifference only if the official knows of and disregards an excessive risk to a prisoner’s health); c.f.

Castro v. County of Los Angeles, 833 F.3d 1060, 1067-71 (9th Cir. 2016) (en banc) (setting forth elements of Fourteenth Amendment failure-to-protect claim by pretrial detainee).

The district court properly dismissed Blankenship’s claim against Shellko because, under any potentially applicable standard, Blankenship failed to allege facts sufficient to show that Shellko knew of or disregarded an excessive risk to Blankenship’s back problem. See

Bell, 441 U.S. at 535;

Toguchi, 391 F.3d at 1057; c.f.

Castro, 833 F.3d at 1071.

The district court did not abuse its discretion in denying Blankenship’s motion for default judgment because defendants had not yet been properly served at the time of Blankenship’s motion. See

Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (setting forth standard of review and noting that a court is without jurisdiction unless there has been proper service).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The district court provided appellants with two opportunities to amend and further amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile);

Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a plaintiff leave to amend, its discretion in deciding subsequent motions to amend is particularly broad.” (citation and internal quotation marks omitted)).

AFFIRMED.

Lance Williams, Pro Se

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

MEMORANDUM **

Lance Williams, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to pay the filing fee after denying him in forma pauperis (“IFP”) status because he had three strikes under the Prison Litigation Reform Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(g).

Andrews v. King, 398 F.3d 1113, 1118 n.6 (9th Cir. 2005). We affirm.

The district court properly denied Williams’ motion to proceed IFP because at the time Williams filed the complaint, he had filed three actions that qualified as “strikes,” and he did not plausibly allege