Lee Swafford v. Jason Rohrer ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE SWAFFORD, AKA Swafford Lee, No. 22-16498
Plaintiff-Appellant, D.C. No. 2:19-cv-00721-DAD-AC
v.
MEMORANDUM*
JASON ROHRER,
Defendant-Appellee,
and
R. NEUSHMID, Warden; T. WAMBLE;
OLLER, R.N.; BUCKER, C.O.; JOHNSON,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted July 18, 2023**
Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
California state prisoner Lee Swafford appeals pro se from the district
*
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).
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. Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015).
We affirm.
The district court properly granted summary judgment because Swafford
failed to raise a genuine dispute of material fact as to whether Rohrer was
deliberately indifferent to Swafford’s serious medical needs by denying Swafford’s
requests for a lower bunk accommodation. See Toguchi v. Chung, 391 F.3d 1051,
1057-60 (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).
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 treat Swafford’s motion (Docket Entry No. 22) as a motion to file a
supplemental brief and grant the motion. The Clerk will file the brief submitted at
Docket Entry No. 16.
AFFIRMED.
2 22-16498