Lawrence Hash v. Samer Kanaan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE GEORGE HASH, No. 18-16732
Plaintiff-Appellant, D.C. No. 3:17-cv-01663-SK
v.
MEMORANDUM*
SAMER A. KANAAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding**
Submitted July 15, 2019***
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
California state prisoner Lawrence George Hash appeals pro from the
district court’s summary judgment in his action alleging deliberate indifference to
his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We
affirm.
The district court properly granted summary judgment because Hash failed
to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent in the treatment of Hash’s gastrointestinal problems. See
id. at 1057-60 (a prison official is deliberately indifferent only if he or she knows
of and disregards an excessive risk to inmate health; a difference of opinion
concerning the course of treatment, medical malpractice, and negligence in
diagnosing or treating a medical condition do not amount to deliberate
indifference).
The district court did not abuse its discretion by denying Hash’s motion to
continue summary judgment in order to conduct additional discovery, because
Hash failed to demonstrate how additional discovery would have precluded
summary judgment. See Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg.
Corp., 525 F.3d 822, 827 (9th Cir. 2008) (setting forth standard of review and
explaining that the burden is on the party seeking a continuance in order to conduct
additional discovery to proffer sufficient facts to show that the evidence sought
would preclude summary judgment).
The district court did not abuse its discretion by denying Hash’s requests for
appointment of counsel because Hash failed to demonstrate exceptional
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circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement for
appointment of counsel).
The district court did not abuse its discretion by denying Hash’s request for
appointment of an expert because such an appointment was not necessary for the
court to make its determination. See Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999) (setting forth standard of
review and noting that district court has discretion to appoint an expert where such
an appointment is necessary).
The district court did not abuse its discretion by considering the expert
declarations submitted by defendants in support of their motions for summary
judgment. See Primiano v. Cook, 598 F.3d 558, 563, 566-67 (9th Cir. 2010)
(setting forth standard of review and requirements for admitting expert testimony).
Hash’s contentions that defendants waived affirmative defenses and violated
his due process rights, the district court failed to consider defendants’ admissions,
and defendants Kanaan and Vaziri’s motions for summary judgment were barred
by collateral estoppel and res judicata, are unpersuasive.
We do not consider arguments raised for the first time on appeal, including
Hash’s arguments about Rand notice. See Padgett v. Wright, 587 F.3d 983, 985
n.2 (9th Cir. 2009).
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Hash’s motion to file an oversized reply brief (Docket Entry No. 48) is
granted. Hash’s motion to file multiple reply briefs (Docket Entry No. 51) is
granted. The Clerk shall file the reply briefs submitted at Docket Entry Nos. 45,
46, and 47.
AFFRIMED.
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