Reno Rios v. Edgar Clark ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENO FUENTES RIOS, No. 19-16127
Plaintiff-Appellant, D.C. No. 1:12-cv-01334-LJO-SKO
v.
MEMORANDUM*
EDGAR CLARK, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
California state prisoner Reno Fuentes Rios 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. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)
*
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).
(en banc) (failure to exhaust); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004) (deliberate indifference). We affirm.
The district court properly granted summary judgment on Rios’s claim
related to his dental care because Rios 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));
McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (requiring inmates
to exhaust administrative procedures prior to filing suit in federal court).
The district court properly granted summary judgment on Rios’s claims
related to his asthma and chronic pain because Rios failed to raise a genuine
dispute of material fact as to whether defendants were deliberately indifferent to
his serious medical needs. See Toguchi, 391 F.3d 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).
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The district court did not abuse its discretion in denying Rios’s motion for
appointment of counsel because Rios failed to demonstrate “exceptional
circumstances” warranting the appointment of counsel. See Palmer v. Valdez, 560
F.3d 965, 970 (9th Cir. 2009) (setting forth standard of review and “exceptional
circumstances” standard for appointment of counsel).
The district court did not abuse its discretion by denying Rios’s motion for
the appointment of a medical expert because Rios failed to show that such an
appointment was necessary. See Walker v. Am. Home Shield Long Term Disability
Plan, 180 F.3d 1065, 1070-71 (9th Cir. 1999) (setting forth standard of review and
noting that district court has discretion to appoint an expert where such an
appointment is necessary).
We reject as meritless Rios’s contention that the district court erred by
failing to consider his summary judgment materials.
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). We do not
consider documents not presented to the district court. See United States v. Elias,
921 F.2d 870, 874 (9th Cir. 1990).
AFFIRMED.
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