Matthew King v. James Cox

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW J. KING, No. 16-16725
Plaintiff-Appellant, D.C. No. 2:13-cv-02080-GMN-
PAL
v.
JAMES G. COX, et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN, and RAWLINSON,
Circuit Judges.
Matthew J. King, a Nevada state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference to a serious medical need. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
*
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).
2004). We affirm.
The district court properly granted summary judgment for defendants Cox
and Byrne because King failed to raise a genuine dispute of material fact as to
whether the course of treatment chosen to treat his hepatitis C was “medically
unacceptable under the circumstances, and was chosen in conscious disregard of an
excessive risk to [King’s] health.” Id. at 1058 (citation and internal quotation
marks omitted) (a difference in medical opinion does not rise to the level of
deliberate indifference).
King’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
relief would have no practical consequences, and the issue is therefore moot).
The district court did not abuse its discretion by denying King’s motions for
appointment of a medical expert and an investigator because King failed to show
that these appointments were necessary. See Walker v. Am. Home Shield Long
Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard
of review).
The district court did not abuse its discretion in denying King’s motion for
appointment of counsel because King did not show exceptional circumstances
warranting such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th
2 16-16725
Cir. 2009) (setting forth standard of review and explaining the “exceptional
circumstances” requirement).
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).
AFFIRMED.
3 16-16725