FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANA McMASTER, No. 12-16239
Plaintiff - Appellant, D.C. No. 1:04-cv-06453-FRZ
v.
MEMORANDUM *
K. NICHOLES; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank R. Zapata, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
California state prisoner Dana McMaster appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal and state
law claims related to the treatment of an injury to his ankle and lower leg. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung,
*
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).
391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on McMaster’s
deliberate indifference claim because McMaster failed to raise a genuine dispute of
material fact as to whether defendants consciously disregarded a serious risk to his
health arising from an injury to his left ankle and lower leg. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (setting forth elements of a claim for deliberate
indifference); Toguchi, 391 F.3d at 1059-60 (neither negligence nor inmate’s
difference of opinion with physician is sufficient for deliberate indifference claim).
The district court properly granted summary judgment on McMaster’s claim
under California Government Code § 845.6 because McMaster failed to raise a
triable dispute as to whether defendants failed to take reasonable action to summon
any necessary immediate medical care for McMaster. See Jett v. Penner, 439 F.3d
1091, 1099 (9th Cir. 2006) (setting forth elements of claim under § 845.6).
The district court did not abuse its discretion in denying McMaster’s motion
to alter or amend judgment based on newly discovered evidence because McMaster
failed to establish that the evidence was of such a magnitude as to change the
outcome of the case had the court known of it earlier. See Dixon v. Wallowa
County, 336 F.3d 1013, 1022 (9th Cir. 2003) (setting forth standard of review and
grounds to warrant reconsideration based on newly discovered evidence).
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The district court did not abuse its discretion in denying McMaster’s
motions for appointment of counsel because, notwithstanding his mental
impairments, McMaster failed to demonstrate exceptional circumstances. See
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (setting forth standard
of review and grounds warranting appointment of counsel).
McMaster’s contentions regarding the district court’s alleged failure to
consider evidence or error in making disputed findings of fact are unpersuasive.
AFFIRMED.
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