Aurelio Sepulveda v. Jeanne Woodford ( 2014 )

FILED
NOT FOR PUBLICATION JUN 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO MARTIN SEPULVEDA, No. 13-15907
Plaintiff - Appellant, D.C. No. 1:05-cv-01143-AWI-
DLB
v.
JEANNE S. WOODFORD; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted June 12, 2014**
Before: McKEOWN, WARDLAW, and M. SMITH, Circuit Judges.
California state prisoner Aurelio Martin Sepulveda appeals pro se from the
district court’s grant of summary judgment in favor of defendant in Sepulveda’s
42 U.S.C. § 1983 action alleging, among other things, deliberate indifference to his
serious medical needs and retaliation against him for filing grievances. 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, Toguchi v. Chung, 391
F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Sepulveda’s
Eighth Amendment claims because Sepulveda failed to raise a genuine dispute of
material fact as to whether defendant Dr. Shu-Pin Wu was deliberately indifferent
in treating Sepulveda’s diabetic neuropathy and eye conditions. See id. at 1057-58(a prison official acts with deliberate indifference only if he or she knows of and
disregards an excessive risk to the prisoner’s health; negligence and a mere
difference in medical opinion are insufficient).
The district court properly granted summary judgment on Sepulveda’s
retaliation claim because Sepulveda failed to raise a genuine dispute of material
fact as to whether Dr. Wu took an adverse action against him because Sepulveda
filed grievances. See Brodheim v. Cry, 584 F.3d 1262, 1269-71 (9th Cir. 2009)
(setting forth elements of a retaliation claim in the prison context); Pratt v.
Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (the timing of adverse actions alone is
insufficient to establish retaliatory intent).
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)
(per curiam).
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Sepulveda’s request to sanction Dr. Wu and strike his answering brief, set
forth in Sepulveda’s reply brief, is denied because Dr. Wu’s answering brief is not
oversized. See Fed. R. App. P. 32(a)(7).
AFFIRMED.
3 13-15907