NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL SCHWARTZ, No. 18-16544
Plaintiff-Appellant, D.C. No. 4:15-cv-00048-JAS
v.
MEMORANDUM*
VINCENT DAGIEL; LOYA, Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Former federal prisoner Paul Schwartz appeals pro se from the district
court’s summary judgment in his action brought under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir.
2014) (en banc). We affirm.
The district court properly granted summary judgment on Schwartz’s
deliberate indifference claim against defendant Loya because Schwartz failed to
exhaust his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90-91
(2006) (explaining that “proper exhaustion” under § 1997e(a) requires inmates to
complete “all steps that the agency holds out” and to follow administrative
procedural rules (citation and internal quotation marks omitted)); Griffin v. Arpaio,
557 F.3d 1117, 1120 (9th Cir. 2009) (a prisoner’s grievance must “alert[] the
prison to the nature of the wrong for which redress is sought” (citation and internal
quotation marks omitted)).
The district court properly granted summary judgment on Schwartz’s
deliberate indifference claim against defendant Dagiel because Schwartz failed to
raise a genuine dispute of material fact as to whether he suffered any harm.
Although the September 13, 2013 EKG is not in the record, the three subsequent
EKGs that Schwartz had showed no abnormalities. See Toguchi v. Chung, 391
F.3d 1051, 1057-60 (9th Cir. 2004) (a prison official is deliberately indifferent only
if he or she knows of and disregards an excessive risk to a prisoner’s health); see
also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a prisoner must
demonstrate “harm caused by the indifference”).
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The district court did not abuse its discretion in denying Schwartz’s motion
under Federal Rule of Civil Procedure 56(d) because Schwartz failed to satisfy the
requirements of Rule 56(d). See Tatum v. City & County of San Francisco, 441
F.3d 1090, 1100 (9th Cir. 2006) (setting forth the standard of review and
explaining that Rule 56 requires a party to “identify by affidavit the specific facts
that further discovery would reveal, and explain why those facts would preclude
summary judgment”).
The district court did not abuse its discretion in denying Schwartz’s various
discovery motions because Schwartz has not demonstrated “actual and substantial
prejudice” as a result of the denied discovery. See Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002) (setting forth the standard of review).
The district court did not abuse its discretion in denying leave to amend. See
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.
2011) (setting forth the standard of review and explaining that a “district court’s
discretion to deny leave to amend is particularly broad where [the] plaintiff has
previously amended the complaint” (citation and internal quotation marks
omitted)).
Schwartz’s contentions that the district court denied him due process, failed
to consider his evidence, and demonstrated bias are unpersuasive.
We do not consider arguments and allegations raised for the first time on
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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