FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ALLEN LEBOVITZ, No. 12-17821
Plaintiff - Appellant, D.C. No. 4:11-cv-00369-JGZ
v.
MEMORANDUM*
REBECCA KENYON, Supervisory
Registered Nurse, Tucson Complex,
Wincester Unit,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Arizona state prisoner Michael Allen Lebovitz 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 and retaliation. We have
*
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).
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 Lebovitz’s Eighth
Amendment claims because Lebovitz failed to raise a genuine dispute of material
fact as to whether defendant was deliberately indifferent in her treatment of his
various medical conditions. See id. at 1057-58, 1060 (deliberate indifference is a
high legal standard, and is met only if the defendant knows of and disregards an
excessive risk to the prisoner’s health; negligence and a mere difference in medical
opinion are insufficient); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
2011) (requirements for establishing supervisory liability); 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 properly granted summary judgment on Lebovitz’s
retaliation claim because Lebovitz failed to raise a genuine dispute of material fact
as to whether defendant took an adverse action against him because Lebovitz filed
grievances. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (setting
forth the elements of a retaliation claim in the prison context and stating that “a
plaintiff must show that his protected conduct was the ‘substantial’ or ‘motivating’
factor behind the defendant’s conduct” (citation omitted)).
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The district court did not abuse its discretion by denying Lebovitz’s motion
to appoint counsel because Lebovitz failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
Kenyon’s motion to strike portions of Lebovitz’s reply brief, filed on
October 17, 2013, is denied as moot because we do not consider arguments raised
for the first time in the reply brief, or allegations raised for the first time on appeal.
See Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1020 n.2 (9th Cir.
2014) (denying motion to strike as moot).
AFFIRMED.
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