Jorge Palacios v. Kevin Smith ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE PALACIOS, No. 20-17233
Petitioner-Appellant, D.C. No. 2:17-cv-02500-TLN-CKD
v.
MEMORANDUM*
KEVIN SMITH,
Defendant-Appellee,
and
EVALYN HOROWITZ,
Defendant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Jorge Palacios appeals pro se from the district
*
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).
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.
2004). We affirm.
The district court properly granted summary judgment because Palacios
failed to raise a genuine dispute of material fact as to whether Smith was
deliberately indifferent to Palacios’s serious medical needs by denying Palacios’s
requests for mobility accommodations and a medical chrono, or in scheduling
Palacios’s hernia surgery. See id. at 1057-60 (holding that deliberate indifference
is a high legal standard and 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 concerning the course of
treatment does not amount to deliberate indifference).
The district court did not abuse its discretion by denying Palacios’s requests
for appointment of an expert under Federal Rule of Evidence 706 because such an
appointment was not necessary for the court to make its determination. See
Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A Rule 706 expert
typically acts as an advisor to the court on complex scientific, medical, or technical
matters.”); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065,
1071 (9th Cir. 1999) (setting forth standard of review).
2 20-17233
We reject as meritless Palacios’s contention that the district court treated
him unfairly as a pro se litigant.
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
All pending motions and requests are denied.
AFFIRMED.
3 20-17233