Harris v. Estate of Duncan , 420 F. App'x 737 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEAN PHILIP HARRIS, No. 09-35430
Plaintiff - Appellant, D.C. No. 3:07-cv-00806-ST
v.
MEMORANDUM *
ESTATE OF DR. IAN ROBERT
DUNCAN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Oregon state prisoner Dean Philip Harris appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging Eighth
Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we may
affirm on any ground supported by the record, O’Guinn v. Lovelock Corr. Ctr., 502
F.3d 1056, 1059 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment because Harris failed
to raise a genuine issue of material fact as to whether defendant was deliberately
indifferent to his lower back pain. See Toguchi, 391 F.3d at 1060 (“Deliberate
indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996)
(“[M]ere allegation and speculation do not create a factual dispute for purposes of
summary judgment.”).
The district court did not abuse its discretion in denying Harris’s motion for
appointment of counsel because he failed to establish exceptional circumstances.
See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (setting
forth standard of review and requirements for appointment of counsel).
Harris’s remaining contentions are unpersuasive.
We do not consider Harris’s arguments raised for the first time on appeal.
See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
2 09-35430