Chet Duda v. Kenneth Choyce ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHET DUDA, No. 19-15450
Plaintiff-Appellant, D.C. No. 2:16-cv-03044-KJD-
CWH
v.
KENNETH CHOYCE; et al., MEMORANDUM*
Defendants-Appellees,
and
BRIAN E. WILLIAMS; BRETTENBACH,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Nevada state prisoner Chet Duda appeals pro se from the district court’s
*
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).
summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference
to his health and safety. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996). We affirm.
The district court properly granted summary judgment because Duda failed
to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to a serious risk to Duda’s health or safety in connection
with excessive heat in his cell. See Farmer v. Brennan, 511 U.S. 825, 845, 847
(1994) (explaining that a prison official acts with deliberate indifference if the
prison official “knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it”).
We reject as meritless Duda’s contention that he was entitled to a jury trial.
We do not consider 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 the excerpts from the Merck Manual because these
documents were not filed with the district court. See United States v. Elias, 921
F.2d 870, 874 (9th Cir. 1990).
Duda’s request for a six-month extension of time to file a supplemental reply
brief, set forth in the reply brief, is denied.
AFFIRMED.
2 19-15450