Clement Ayer v. Charles Ryan , 682 F. App'x 594 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLEMENT MAKUNG AYER, AKA No. 16-15976
Clement Ayer, AKA Clement M. Ayer,
D.C. No. 2:13-cv-00482-DJH-
Plaintiff-Appellant, MHB
v.
MEMORANDUM*
CHARLES L. RYAN, Director at Arizona
State Prison Complex,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Arizona state prisoner Clement Makung Ayer appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
defendant violated his Eighth Amendment rights by not providing elbow surgery or
*
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).
a diabetic diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir.
2011). We affirm.
The district court properly granted summary judgment for defendant Ryan
because Ayer failed to raise a genuine dispute of material fact as to whether
defendant knew of and disregarded an excessive risk to Ayer’s health. See
Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004) (a prison official acts
with deliberate indifference only if he knows of and disregards an excessive risk to
the prisoner’s health); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (under
§ 1983, there must be a showing of personal participation in the alleged rights
deprivation).
The district court did not abuse its discretion when it denied Ayer’s motion
to amend judgment and motion for relief from judgment because Ayer failed to
establish any grounds for such relief. See Sch. Dist. No. 1J, Multnomah Cty., Or.
v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of
review and grounds for relief from judgment under Federal Rules of Civil
Procedure 59(e) and 60(b)).
Ayer’s appeal of the denial of his motion for preliminary injunction is moot.
See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992)
(when underlying claims have been decided, the reversal of a denial of preliminary
2 16-15976
relief would have no practical consequences, and the issue is therefore moot).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider issues which are not supported by argument. See
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).
AFFIRMED.
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