John Snow v. David Mar ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN OLIVER SNOW, No. 18-16577
Plaintiff-Appellant, D.C. No. 3:14-cv-00290-RCJ-VPC
v.
MEMORANDUM*
DAVID MAR; E.K. McDANIEL, Warden,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Nevada state prisoner John Oliver Snow 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 the district court’s summary judgment and decision on
*
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).
qualified immunity. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th
Cir. 2007). We may affirm on any basis supported by the record, Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.
The district court properly granted summary judgment for defendant Dr. Mar
on the basis of qualified immunity because it would not have been clear to every
reasonable official that the course of Dr. Mar’s treatment of Snow’s medical
conditions was unlawful under the circumstances. See Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011) (discussing qualified immunity and noting that a right is
clearly established only if “every reasonable official would have understood that
what he is doing violates that right” (citation and internal quotation marks and
alterations omitted)).
Summary judgment was proper for defendant McDaniel because Snow
failed to raise a genuine dispute of material fact as to whether McDaniel personally
participated in the alleged deprivation of Snow’s rights. See Jones v. Williams,
297 F.3d 930, 934 (9th Cir. 2002) (liability under § 1983 requires showing of
personal participation in the alleged rights deprivation).
The district court did not abuse its discretion by denying Snow’s motions for
appointment of counsel because Snow failed to demonstrate exceptional
circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting
forth standard of review and factors for appointment of counsel).
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The district court did not abuse its discretion by denying Snow’s motion
for appointment of expert witnesses or an investigator because the district court’s
qualified immunity determination did not require analysis of technical evidence or
complex issues and there is no statutory authorization for a court-appointed
investigator for civil litigants proceeding in forma pauperis. See Fed. R. Evid. 706
(governing court-appointed expert witnesses); Vizcaino v. Microsoft Corp., 290
F.3d 1043, 1051 n.7 (9th Cir. 2002) (district court’s decision whether to appoint an
expert is discretionary). We reject as without merit Snow’s contention that the
district court issued a medical opinion.
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990). Nor do we consider matters not
specifically and distinctly raised and argued in the opening brief. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Appellees’ motion to strike certain exhibits to Snow’s reply brief (Docket
Entry No. 28) is denied.
AFFIRMED.
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