FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER T. JACKSON, No. 15-15660
Plaintiff-Appellant, D.C. No. 4:12-cv-06020-YGR
v.
MEMORANDUM*
D. BRIGHT; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
California state prisoner Christopher T. Jackson 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 de novo. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2014) (en banc) (legal rulings on exhaustion); Toguchi v. Chung, 391 F.3d 1051,
1056 (9th Cir. 2004) (summary judgment). We affirm.
The district court properly granted summary judgment for defendants
Fernandez, Delgado, and Ellis in connection with their handling of Grievance No.
CTF HC 12037007 because Jackson failed to raise a genuine dispute of material
fact as to whether they were deliberately indifferent to his back pain. See Toguchi,
391 F.3d at 1058, 1060 (deliberate indifference is a high legal standard; medical
malpractice, negligence, or a difference of opinion concerning the course of
treatment does not amount to deliberate indifference); see also Peralta v. Dillard,
744 F.3d 1076, 1086-87 (9th Cir. 2014) (en banc) (affirming judgment as a matter
of law on deliberate indifference claim for prison administrative officer who relied
on medical opinions of other doctors who had investigated inmate’s complaint).
The district court granted defendants’ motions to dismiss for failure to
exhaust administrative remedies Jackson’s claims against defendants Javate,
Bright, Adams, and Ellis in connection with Grievance No. CTF HC 12037457.
The district court analyzed the motions as unenumerated motions to dismiss under
Federal Rule of Civil Procedure 12(b), relying on Wyatt v. Terhune, 315 F.3d 1108
(9th Cir. 2003). In denying Jackson’s motion for reconsideration of that decision,
the district court did not apply our intervening decision in Albino, which held that
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failure to exhaust is an affirmative defense that should normally be raised through
a summary judgment motion. See Albino, 747 F.3d at 1166. However, we treat the
district court’s dismissal of these claims and denial of reconsideration as a grant of
summary judgment because the district court considered the parties’ evidence in
determining correctly that Jackson failed to exhaust administrative remedies. See
Draper v. Rosario, 836 F.3d 1072, 1079 (9th Cir. 2016) (explaining that “[r]emand
is not necessary . . . if the district court’s dismissal of the plaintiff’s claim can be
construed as a grant of summary judgment[,]” such as when “it is clear that the
district court considered evidence submitted by the parties in reaching its decision”
(citation and internal quotation marks omitted)); Albino, 747 F.3d at 1176
(defendants must “plead and prove” plaintiff’s failure to exhaust administrative
remedies).
The district court did not abuse its discretion by denying Jackson leave to
file a supplemental complaint because the supplemental complaint attempted to
introduce separate, distinct, and new causes of action. See Planned Parenthood of
S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (reviewing denial of leave to
file a supplemental complaint for abuse of discretion and stating that a
supplemental complaint “cannot be used to introduce a separate, distinct and new
cause of action” (citation and internal quotation marks omitted)).
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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).
Defendants’ motion to strike evidence and arguments in Jackson’s reply
brief, filed on December 2, 2015, is denied.
AFFIRMED.
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