FERGUSON v. AGLER (2018)

MEMORANDUM **

Idaho state prisoner Robert Ray Ferguson appeals pro se from the district court’s summary judgment on his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs and his state-law claim alleging negligence. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment on Ferguson’s deliberate indifference claim because Ferguson failed to raise a genuine dispute of material fact as to whether defendants were deliberately indifferent in their treatment of his medical conditions, including his hip pain. See id. at 1057-58 (a prison official acts with deliberate indifference only if she or he knows of and disregards an excessive risk to the prisoner’s health; a mere difference in medical opinion or negligence is insufficient to establish deliberate indifference).

The district court properly granted summary judgment on Ferguson’s negligence claim because Ferguson failed to introduce competent expert testimony showing that defendants “negligently failed to meet the applicable standard of health care practice.” Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464, 476 (2016) (citing Idaho Code §§ 6-1012, 6-1013); see also Easterling v. Kendall, 159 Idaho 902, 367 P.3d 1214, 1226 (2016) (setting forth elements of medical malpractice claim under Idaho law and stating that “the applicable standard of care and breach of that standard [must] be proved by expert testimony”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments raised for the first time on appeal, including Ferguson’s contention that the district court abused its discretion by striking exhibits attached to the complaint. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as unsupported by the record Ferguson’s contentions regarding the discovery schedule and the district court’s alleged failure to consider his evidence.

Ferguson’s renewed motion for appointment of counsel (Docket Entry No. 38) is denied.

AFFIRMED.