NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON BERT FODGE, No. 16-35497
Plaintiff-Appellant, D.C. No. 1:13-cv-00331-BLW
v.
MEMORANDUM*
TINA BOSSOLONO-WILLIAMS, R.N.; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Aaron Bert Fodge, an Idaho state prisoner, appeals pro se from the district
court’s summary judgment and dismissal order in his 42 U.S.C. § 1983 action
alleging deliberate indifference to a serious medical need. We have jurisdiction
under 28 U.S.C.
*
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).
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004) (summary judgment); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We may affirm on
any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040,
1047 (9th Cir. 2009). We affirm.
Summary judgment was proper because Fodge failed to raise a genuine
dispute of material fact as to whether the recommended course of treatment was
“medically unacceptable under the circumstances, and was chosen in conscious
disregard of an excessive risk to [Fodge’s] health.” Toguchi, 391 F.3d at 1058
(citation and internal quotation marks omitted) (a difference in medical opinion
does not rise to the level of deliberate indifference).
The district court properly dismissed Fodge’s claim against Corizon because
Fodge failed to allege facts sufficient to show that any constitutional deprivation
occurred as a result of a custom or policy of Corizon. See Tsao v. Desert Palace,
Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (to make out a claim against a private
entity under § 1983, plaintiff must show that defendant (1) acted under color of
state law, and (2) a constitutional violation was caused by an official policy or
custom of defendant).
The district court did not abuse its discretion by denying Fodge’s motions
for appointment of counsel because Fodge did not show exceptional circumstances
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warranting such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009) (setting forth standard of review and explaining the “exceptional
circumstances” requirement).
The district court did not abuse its discretion by denying Fodge’s request for
judicial notice. See Fed. R. Evid. 201(b) (setting forth the kinds of facts that are
judicially noticeable); Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016
n.9 (9th Cir. 2012) (setting forth standard of review).
The district court did not abuse its discretion by denying Fodge’s motion for
reconsideration because Fodge failed to establish grounds for such relief. See Sch.
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.
1993) (setting forth standard of review and grounds for reconsideration).
Defendant Siegert’s motion to strike “Appendix A” to Fodge’s reply brief
(Docket Entry No. 37) is granted.
AFFIRMED.
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