FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER V. RODENHURST, III, No. 11-17032
Plaintiff - Appellant, D.C. No. 2:10-cv-01237-GMS-
MHB
v.
KAY BAUMAN, M.D.; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Hawaii state prisoner Walter V. Rodenhurst, III, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. §1983 action alleging
deliberate indifference, violations of his right of access to the courts, and state law
*
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).
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Rodenhurst’s
Eighth Amendment claims because Rodenhurst failed to raise a genuine dispute of
material fact as to whether defendants acted with deliberate indifference in
providing medical care for his conditions, including his pancreatitis and
hypertension, and in failing to provide him with a special diet in a consistent
manner. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to establish
deliberate indifference, the prisoner must show “(a) a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference”); Toguchi, 391 F.3d at 1057-58 (neither negligence nor a difference
in medical opinion is sufficient to establish deliberate indifference).
The district court properly granted summary judgment on Rodenhurst’s
access-to-courts claim because Rodenhurst failed to raise a triable dispute as to
whether he suffered actual injury. See Lewis v. Casey, 518 U.S. 343, 348-49
(1996) (access-to-courts claim requires actual prejudice to contemplated or existing
litigation, such as inability to meet a filing deadline or to present a claim).
The district court properly granted summary judgment on Rodenhurst’s
negligence claims because Rodenhurst failed to introduce expert testimony
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demonstrating that defendants’ actions fell below the standard of care. See Smith
v. Hines, 261 P.3d 1129, 1133 (Okla. 2011) (expert testimony is required to
establish medical negligence unless it is readily apparent to a layman); Ryan v. S.F.
Peaks Trucking Co., Inc., 262 P.3d 863, 869-70 (Ariz. Ct. App. 2011) (same).
The district court properly granted summary judgment on Rodenhurst’s
claim relating to access to his private physician because, even assuming that
section 353-13.5 of the Hawaii Revised Statutes creates a private right of action,
Rodenhurst failed to raise a genuine dispute as to whether he complied with the
administrative requirements for gaining such access. See Haw. Rev. Stat. § 353-
13.5 (noting that “such care shall conform to the department’s rules and established
practices including any requirements concerning advance notice of visits with the
prisoner”).
The district court properly dismissed as time-barred Rodenhurst’s claims
stemming from his incarceration in Hawaii prior to his April 2006 transfer because
Rodenhurst filed his complaint more than two years after exhausting administrative
remedies for those claims. See Haw. Rev. Stat. § 657-7 (two-year statute of
limitations for personal injury actions); Jones v. Blanas, 393 F.3d 918, 926-27 (9th
Cir. 2004) (setting forth standard of review and noting that, “for actions under 42
U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal
3 11-17032
injury actions”); see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)
(“[T]he applicable statute of limitations must be tolled while a prisoner completes
the mandatory exhaustion process.”).
Rodenhurst’s appeal of the denial of his request for a temporary restraining
order is moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450
(9th Cir. 1992) (when underlying claims have been decided, the reversal of a denial
of a preliminary injunction would have no practical consequences, and the issue is
therefore moot).
Rodenhurst’s arguments concerning defendants’ motion to dismiss for
failure to exhaust are unpersuasive.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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