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 2023-08

Myoho Winston, Jr. v. Russell Paul ( 2023 )


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  •                            NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                        AUG 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYOHO MYSTIC WINSTON, Jr.,                       No. 22-16021
Plaintiff-Appellant,             D.C. No. 1:22-cv-00343-JLT-EPG
v.
MEMORANDUM*
RUSSELL K. PAUL, Doctor,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, District Judge, Presiding
Submitted August 15, 2023**
Before:      TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
California state prisoner Myoho Mystic Winston, Jr., appeals pro se from the
district court’s judgment dismissing for failure to state a claim 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 a dismissal under 28
*
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).
U.S.C. § 1915A. Wilhelm v. Rotman,
    680 F.3d 1113
    , 1118 (9th Cir. 2012). We
affirm.
The district court properly dismissed Winston’s action because Winston
failed to allege facts sufficient to show that Paul was deliberately indifferent to
Winston’s serious medical needs by performing surgery to place a stent or, while
Winston was receiving other treatment, by declining to perform a follow-up
surgery to remove the stent after it had broken. See Toguchi v. Chung,
    391 F.3d 1051
    , 1057-60 (9th Cir. 2004) (holding that 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 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 filed with the district court. See United
States v. Elias,
    921 F.2d 870
    , 874 (9th Cir. 1990).
Winston’s motion to supplement the record (Docket Entry No. 11) is denied.
AFFIRMED.
2                                      22-16021