Lance Reberger v. Michael Koehn

NOT FOR PUBLICATION FILED
AUG 20 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE REBERGER, No. 19-15613
Plaintiff-Appellant, D.C. No. 3:15-cv-00468-MMD-
CBC
v.
MICHAEL KOEHN; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted August 17, 2021**
Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.
Nevada state prisoner Lance Reberger 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.
§ 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 on Reberger’s claim
concerning his August 1, 2014 medical treatment because Reberger failed to raise a
genuine dispute of material fact as to whether defendants were deliberately
indifferent to his serious medical needs. See id. at 1057-60 (holding deliberate
indifference is a “high legal standard” requiring a defendant be aware of and
disregard an excessive risk to an inmate’s health; medical malpractice, negligence,
or a difference of opinion concerning the course of treatment does not amount to
deliberate indifference).
The district court properly granted summary judgment on Reberger’s claim
concerning the denial of seizure medication because Reberger failed to exhaust his
administrative remedies and failed to raise a genuine dispute of material fact as to
whether administrative remedies were effectively unavailable to him. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative
remedies . . . means using all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).” (citation and internal
quotation marks omitted)).
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).
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We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
Reberger’s request for an in camera review of a video filed with the district
court, set forth in the opening brief, is denied as unnecessary.
Reberger’s motion to file an oversized reply brief (Docket Entry No. 68) is
granted.
AFFIRMED.
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