NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY GARCIA, No. 19-15252
Plaintiff-Appellant, D.C. No. 2:14-cv-00093-TLN-
DMC
v.
TSENG, Dr., MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
California state prisoner Danny Garcia 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 cross-motions for summary judgment. Guatay
*
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).
Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).
We affirm.
The district court properly granted summary judgment for Tseng because
Garcia failed to raise a genuine dispute of material fact as to whether Tseng was
deliberately indifferent to Garcia’s leg-length discrepancy and his back and
shoulder pain. See Toguchi v. Chung, 391 F.3d 1051, 1056-60 (9th Cir. 2004) (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); see also Estelle v. Gamble, 429 U.S. 97, 107 (1976) (“A medical
decision not to order an X-ray, or like measures, does not represent cruel and
unusual punishment. At most it is medical malpractice”).
We do not consider Garcia’s arguments regarding his First Amendment
claim because it was not properly presented to the district court. See Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (explaining that
“[w]here . . . the complaint does not include the necessary factual allegations to
state a claim, raising such claim in a summary judgment motion is insufficient to
present the claim to the district court”).
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
2 19-15252
or in the reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider documents not presented to the district court. See
United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).
Garcia’s requests for miscellaneous relief, set forth in the reply brief, are
denied.
AFFIRMED.
3 19-15252