FILED
NOT FOR PUBLICATION APR 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERRY DON EVANS, No. 09-56925
Plaintiff - Appellant, D.C. No. 3:06-cv-00877-JM-RBB
v.
MEMORANDUM *
WILLIAM B. KOLENDER, Sheriff; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Terry Don Evans, a California state prisoner, appeals pro se from the district
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 for an abuse of discretion the district court’s discovery rulings,
*
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).
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and we affirm.
Evans sent a letter to the district court requesting that the clerk process and
serve five enclosed subpoenas to non-parties, which Evans had attempted to mail
but were returned to him as undeliverable. In a Notice of Document Discrepancies,
the clerk noted that Evans’s request was “not grantable by Clerk without further
direction of the Judge,” and Magistrate Judge Brooks ordered that the letter be
rejected and not filed. Evans did not file a motion for the district court to issue a
subpoena duces tecum or order a U.S. Marshal to effect proper service, and has not
shown any resulting prejudice. Accordingly, his contention that the district court
refused to allow him to obtain documentary evidence by rejecting his letter request
to the clerk is unpersuasive. See Hallett, 296 F.3d at 751 (trial court’s broad
discretion “will not be disturbed except upon the clearest showing that denial of
discovery results in actual and substantial prejudice to the complaining litigant”);
see also Fed. R. Civ. P. 45(b) (service of subpoenas).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
AFFIRMED.
2 09-56925