Mitchell Varnell v. Kenneth Sawyer ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MITCHELL LEE VARNELL, No. 18-35771
Plaintiff-Appellant, D.C. No. 3:15-cv-05443-BHS
v.
MEMORANDUM*
KENNETH SAWYER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Mitchell Lee Varnell, a Washington state prisoner, 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
*
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).
Cir. 2004), and we affirm.
The district court properly granted summary judgment because Varnell
failed to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to Varnell’s serious medical needs regarding his back. 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 Hallett v. Morgan, 296 F.3d 732, 746
(9th Cir. 2002) (delays in medical treatment do not constitute an Eighth
Amendment violation unless the defendants know that “delays would cause
significant harm”).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
Varnell’s request for appointment of counsel, set forth in the opening brief,
is denied.
AFFIRMED.
2 18-35771