BUFFALO v. Arizona Department of Public Safety, named as Department of Public Safety, Risk Management Division, Defendant. (2021)

United States Court of Appeals, Ninth Circuit.

Ben BUFFALO, Plaintiff-Appellant, v. State of ARIZONA, named as State of Arizona, Attorney General; Bobbie Woolley, State Trooper, Defendants-Appellees, Arizona Department of Public Safety, named as Department of Public Safety, Risk Management Division, Defendant.

No. 19-17401

Decided: January 27, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Ben Buffalo, Pro Se Michael Tryon, Assistant Attorney General, Jeremy Horn, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Defendant-Appellee State of Arizona Jeremy Horn, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Defendant-Appellee Bobbie Woolley

MEMORANDUM **

Ben Buffalo appeals pro se from the district court's summary judgment in his diversity action alleging wrongful death claims. 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 Buffalo's negligence claims stemming from defendant Woolley's conduct because Buffalo failed to raise a genuine dispute of material fact as to whether defendants breached an existing duty or were the proximate cause of Bryce Buffalo's auto accident. See Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228, 230 (2007) (en banc) (setting forth elements of a negligence claim under Arizona law); see also In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (describing non-moving party's burden to show specific facts demonstrating existence of genuine disputes for trial).

The district court did not err by deferring consideration of the summary judgment motion without formally ruling on Buffalo's request for additional time to take discovery. See Fed. R. Civ. P. 56(d) (setting forth the district court's options upon a proper showing by the nonmovant that it cannot present facts essential to justify its opposition to summary judgment); Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994) (setting forth standard of review for district court's failure to address a Rule 56(d) motion before granting summary judgment; decision on a Rule 56(d) motion need not be explicitly stated).

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).

AFFIRMED.