Mitchell Varnell v. Kenneth Sawyer

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL LEE VARNELL, No. 17-35096
Plaintiff-Appellant, D.C. No. 3:15-cv-05443-BHS-
DWC
v.
KENNETH SAWYER; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Washington state prisoner Mitchell Lee Varnell appeals pro se from the
district court’s order denying his motion for a preliminary injunction in his 42
U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs.
We have jurisdiction under 28 U.S.C. § 1292(a). We review for an abuse of
*
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).
discretion. Jackson v. City & County of San Francisco, 746 F.3d 953, 958 (9th
Cir. 2014). We affirm.
The district court did not abuse its discretion by denying Varnell’s request
for mandatory injunctive relief seeking transportation to medical appointments in a
car with cushioned seats because Varnell failed to establish that he is likely to
succeed on the merits of his claim alleging deliberate indifference to his back
injury. See id. (plaintiff seeking preliminary injunction must establish that he is
likely to succeed on the merits, he is likely to suffer irreparable harm in the
absence of preliminary relief, the balance of equities tips in his favor, and an
injunction is in the public interest); Park Vill. Apartment Tenants Ass’n v.
Mortimer Howard Trust, 636 F.3d 1150, 1160-61 (9th Cir. 2011) (mandatory
injunctions are not generally granted unless “extreme or very serious damage will
result” (citation and internal quotation marks omitted)); Toguchi v. Chung, 391
F.3d 1051, 1058-60 (9th Cir. 2004) (deliberate indifference is a high legal
standard; medical malpractice, negligence, or a difference of opinion concerning
the course of treatment does not amount to deliberate indifference).
We lack jurisdiction to review the district court’s denial of Varnell’s request
for injunctive relief seeking pain medication and surgery.
We do not consider issues not specifically and distinctly raised and argued in
the opening brief, or arguments and allegations raised for the first time on appeal.
2 17-35096
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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