Clement Ayer v. Charles Ryan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLEMENT MAKUNG AYER, AKA No. 16-15976
Clement Ayer, AKA Clement M. Ayer,
D.C. No. 2:13-cv-00482-DJH-
Plaintiff-Appellant, MHB

v.
MEMORANDUM*
CHARLES L. RYAN, Director at Arizona
State Prison Complex,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding

Submitted March 8, 2017**

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

Arizona state prisoner Clement Makung Ayer appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

defendant violated his Eighth Amendment rights by not providing elbow surgery or

*
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).
a diabetic diet. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Guatay 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 defendant Ryan

because Ayer failed to raise a genuine dispute of material fact as to whether

defendant knew of and disregarded an excessive risk to Ayer’s health. See

Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004) (a prison official acts

with deliberate indifference only if he knows of and disregards an excessive risk to

the prisoner’s health); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (under

§ 1983, there must be a showing of personal participation in the alleged rights

deprivation).

The district court did not abuse its discretion when it denied Ayer’s motion

to amend judgment and motion for relief from judgment because Ayer failed to

establish any grounds for such relief. See Sch. Dist. No. 1J, Multnomah Cty., Or.

v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of

review and grounds for relief from judgment under Federal Rules of Civil

Procedure 59(e) and 60(b)).

Ayer’s appeal of the denial of his motion for preliminary injunction 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 preliminary

2 16-15976
relief would have no practical consequences, and the issue is therefore moot).

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).

We do not consider issues which are not supported by argument. See

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).

AFFIRMED.

3 16-15976