Joshua Friar v. Mark Nooth ( 2023 )

NOT FOR PUBLICATION FILED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.
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