FILED
NOT FOR PUBLICATION JAN 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON FRANKLIN, No. 12-15552
Plaintiff - Appellant, D.C. No. 3:10-cv-04390-CRB
v.
MEMORANDUM*
RANDY GROUNDS, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
California state prisoner Byron Franklin 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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). We affirm.
The district court properly granted summary judgment because Franklin
failed to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to his thumb injury. See id. at 1057-58 (a prison official is
deliberately indifferent only if he or she knows of and disregards an excessive risk
to an inmate’s health and safety; neither negligence in diagnosing or treating a
medical need, nor a prisoner’s difference of opinion concerning the course of
treatment, amounts to deliberate indifference).
The district court did not abuse its discretion in denying Franklin’s motions
for appointment of counsel because Franklin failed to demonstrate exceptional
circumstances. 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 in denying Franklin’s motion
for a continuance of summary judgment because Franklin failed diligently to
pursue discovery. See Nidds v. Schindler Elevator Corp., 113 F.3d 912, 920-21
(9th Cir. 1996) (setting forth standard of review and stating that if a litigant fails
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diligently to pursue discovery, the district court does not abuse its discretion in
denying a motion to continue summary judgment).
Although the district court did not provide notice of the requirements to
defeat summary judgment concurrently with the motion for summary judgment,
the error was harmless in this case. See Woods v. Carey, 684 F.3d 934, 935, 941
(9th Cir. 2012) (Rand notice must be served concurrently with a motion for
summary judgment; failure to provide adequate Rand notice “is a ground for
reversal unless it is clear from the record that there are no facts that would permit
the inmate to prevail”); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en
banc) (pro se prisoners must be provided plain language notice of the requirements
and consequences of the summary judgment rule).
We do not consider matters raised for the first time on appeal. See Janes v.
Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).
AFFIRMED.
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