NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL HARTSON FLETCHER, No. 17-35936
Plaintiff-Appellant, D.C. No. 6:15-cv-00104-DLC
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Paul Hartson Fletcher appeals pro se from the district court’s summary
judgment in his Federal Tort Claims Act (“FTCA”) action alleging medical
malpractice. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). We affirm.
*
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).
The district court properly granted summary judgment because Fletcher
failed to adduce expert testimony and therefore failed to raise a genuine dispute of
material fact as to whether defendant committed medical malpractice. See Jackson
v. United States, 881 F.2d 707, 712 (9th Cir. 1989) (substantive state law applies in
FTCA actions); Beehler v. E. Radiological Assocs., P.C., 289 P.3d 131, 136 (Mont.
2012) (setting forth elements of a negligence claim under Montana law and
declining to apply the “common knowledge” exception to the expert testimony
requirement); Griffin v. Moseley, 234 P.3d 869, 875 (Mont. 2010) (“[A] plaintiff
has the burden in a medical malpractice case of presenting evidence on the medical
standard of care ‘by expert medical testimony unless the conduct complained of is
readily ascertainable by a layman.’” (citation omitted)).
The district court did not abuse its discretion by denying Fletcher’s motions
for appointment of counsel because Fletcher did not demonstrate any exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement).
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).
AFFIRMED.
2 17-35936