Ester Burnett v. Bruce Faecher

FILED
NOT FOR PUBLICATION JAN 02 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ESTER BURNETT, No. 11-55637

Plaintiff - Appellant, D.C. No. 2:08-cv-02745-PSG-
MLG
v.

BRUCE FAECHER, Doctor; et al., MEMORANDUM *

Defendants - Appellees,

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Submitted December 19, 2012 **

Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.

Ester Burnett, 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 back pain and related medical needs. We have jurisdiction

*
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).
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 Burnett’s Eighth

Amendment claims because Burnett did not raise a genuine dispute of material fact

as to whether defendants’ decisions regarding Burnett’s medications were

“medically unacceptable under the circumstances, and [were] chosen in conscious

disregard of an excessive risk to [Burnett’s] health.” Id. at 1058 (citation and

internal quotation marks omitted) (a difference in medical opinion does not rise to

the level of deliberate indifference). Burnett also failed to raise a genuine dispute

of material fact as to whether defendants were deliberately indifferent to his need

for a particular bunk placement and to transfer to a different prison facility, or

whether the requirement that inmates help identify potentially compatible

cellmates violated his Eighth Amendment rights. See id. at 1060 (deliberate

indifference is a high legal standard; mere negligence does not suffice); see also

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983

arises only upon a showing of personal participation by the defendant.”).

Because the district court granted summary judgment independently of the

deemed admissions, we do not consider Burnett’s argument that the district court

abused its discretion in denying his motion to withdraw the admissions.

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 The district court did not abuse its discretion in denying Burnett’s motion for

leave to file a fourth amended complaint, after granting Burnett multiple

opportunities to amend and instructing him on the deficiencies in the complaint.

See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth

standard of review and noting that the district court’s discretion is particularly

broad when it has already granted leave to amend).

The district court did not abuse its discretion in denying Burnett’s motion for

appointment of counsel because Burnett failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and “exceptional circumstances” requirement).

Burnett’s contentions regarding the district court’s dismissal of his second

amended complaint are rejected.

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) (per curiam).

Burnett’s request for appointment of counsel, set forth in his opening brief,

is denied. Burnett’s “motion to exclude admissions,” filed on February 24, 2012,

is denied.

AFFIRMED.

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