NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY DAVID AGUILAR, No. 19-55179
Plaintiff-Appellant, D.C. No. 3:15-cv-02446-MMA-
AGS
v.
DARRYL BATES, M.D.; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.
California state prisoner Jerry David Aguilar 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. Toguchi v. Chung, 391 F.3d 1051, 1056 (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).
2004). We affirm.
The district court properly granted summary judgment because Aguilar
failed to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to Aguilar’s broken ankle and need for surgery. See id. at
1057-60 (a prison official is deliberately indifferent only if he or she knows of and
disregards an excessive risk to inmate health; medical malpractice, negligence, or a
difference of opinion concerning the course of treatment does not amount to
deliberate indifference); Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002)
(delays in medical treatment do not constitute an Eighth Amendment violation
unless the defendants know that “delays would cause significant harm”).
The district court did not abuse its discretion by denying Aguilar’s motion
for appointment of counsel because Aguilar 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 for
appointment of counsel).
The district court did not abuse its discretion by denying Aguilar’s request
for appointment of an expert under Federal Rule of Evidence 706 because such an
appointment was not necessary for the court to make its determination. See
Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A Rule 706 expert
typically acts as an advisor to the court on complex scientific, medical, or technical
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matters.”); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065,
1071 (9th Cir. 1999) (setting forth standard of review).
We do not consider Aguilar’s arguments regarding the district court’s order
denying Aguilar’s post-judgment motions to reconsider, amend or alter the
judgment because Aguilar failed to file a new or amended notice of appeal after the
district court denied his post-judgment motions. See Fed. R. App. P. 4(a)(4)(B)(ii);
Harris v. Mangum, 863 F.3d 1133, 1138 n.1 (9th Cir. 2017).
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.
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