Joshua Friar v. Mark Nooth ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       AUG 30 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSHUA THOMAS FRIAR,                            No. 22-35297
    Plaintiff-Appellant,            D.C. No. 2:20-cv-01621-AA
    v.
    MEMORANDUM*
    MARK NOOTH, East-side, sued in his
    individual and or official capacity as
    appropriate; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Oregon
    Ann L. Aiken, District Judge, Presiding
    Submitted August 15, 2023**
    Before:      TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
    Oregon state prisoner Joshua Thomas Friar 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.
    *
    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).
    § 1291. We review de novo. Cortez v. Skol, 
    776 F.3d 1046
    , 1050 (9th Cir. 2015).
    We affirm.
    The district court properly granted summary judgment because Friar failed
    to raise a genuine dispute of material fact as to whether defendants were
    deliberately indifferent to his serious medical needs. See Toguchi v. Chung, 
    391 F.3d 1051
    , 1057, 1060 (9th Cir. 2004) (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).
    The district court did not abuse its discretion by denying Friar’s motion for a
    stay of summary judgment and additional discovery because Friar did not
    diligently pursue his previous discovery opportunities and did not articulate how
    the information sought would preclude summary judgment. See Stevens v.
    Corelogic, Inc., 
    899 F.3d 666
    , 677-78 (9th Cir. 2018) (setting forth standard of
    review and explaining that a party seeking further discovery under Federal Rule of
    Civil Procedure 56(d) must show that “(1) it has set forth in affidavit form the
    specific facts it hopes to elicit from further discovery; (2) the facts sought exist;
    and (3) the sought-after facts are essential to oppose summary judgment” (citation
    and internal quotation marks omitted)).
    The district court did not abuse its discretion by denying Friar’s motion for
    2                                     22-35297
    reconsideration because Friar failed to demonstrate a basis for relief. See Sch.
    Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 
    5 F.3d 1255
    , 1262-63 (9th
    Cir. 1993) (setting forth standard of review and grounds for reconsideration under
    Fed. R. Civ. P. 60(b)).
    We do not 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).
    AFFIRMED.
    3                                   22-35297