Howard Cochran v. Kubler ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD COCHRAN, No. 20-15434
Plaintiff-Appellant, D.C. No. 2:18-cv-00688-MTL
v.
MEMORANDUM*
KUBLER, Nurse at Lewis,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Arizona state prisoner Howard Cochran 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 because Cochran
failed to raise a genuine dispute of material fact as to whether defendant Kubler
was deliberately indifferent to Cochran’s back pain. 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; medical malpractice, negligence, or a difference of
opinion concerning the course of treatment does not amount to deliberate
indifference); see also McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992),
overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (1997)
(en banc) (“A finding that the defendant’s neglect of a prisoner’s condition was an
‘isolated occurrence,’ or an ‘isolated exception,’ to the defendant’s overall
treatment of the prisoner ordinarily mitigates against a finding of deliberate
indifference.” (internal citations omitted)).
The district court did not abuse its discretion by dismissing Cochran’s
complaint without leave to amend because amendment would have been futile.
See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.
2011) (setting forth standard of review and explaining that dismissal without leave
to amend is proper when amendment would be futile).
We do not consider arguments or allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 20-15434
Cochran’s motion to amend and supplement (Docket Entry No. 6) is denied.
AFFIRMED.
3 20-15434