David Bell v. M. Glynn , 696 F. App'x 249 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ROBERT BELL, No. 16-56533
Plaintiff-Appellant, D.C. No. 3:14-cv-01397-BEN-PCL
v.
MEMORANDUM*
M. GLYNN, in his capacity as Doctor and
Chief Medical Officer (CMO); et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
California state prisoner David Robert Bell appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
*
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). Bell’s request for oral
argument, set forth in his reply brief, is denied.
§ 1291. We review de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir.
2013). We affirm.
The district court properly granted summary judgment because Bell failed to
raise a genuine dispute of material fact as to whether defendants knew of and
disregarded an excessive risk to Bell’s health. See Toguchi v. Chung, 391 F.3d
1051, 1057-60 (9th Cir. 2004) (a prison official is deliberately indifferent only if he
or she knows of and disregards an excessive risk to inmate health; medical
malpractice, negligence, or a difference of opinion regarding diagnosing or treating
a medical condition does not violate a prisoner’s Eighth Amendment rights).
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).
Bell’s requests to file a late and oversized reply brief (Docket Entry Nos. 20
and 21) are granted. The Clerk shall file the reply brief submitted at Docket Entry
No. 18.
AFFIRMED.
2 16-56533