Avon Davies v. Crosson

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AVON DAVIES, No. 18-16848

Plaintiff-Appellant, D.C. No. 2:14-cv-02831-MCE- CKD v.

CROSSON, Dr., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

California state prisoner Avon Davies 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. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We

* 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). affirm.

The district court properly granted summary judgment because Davies failed

to raise a genuine dispute of material fact as to whether defendant was deliberately

indifferent to Davies’s eye-related medical issues. See id. at 1057-60 (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).

We reject as unsupported by the record Davies’s contentions that he alleged

a due process claim and that the district court erred by failing to consider it.

To the extent Davies appeals the district court’s September 21, 2017 order

denying his motion for a preliminary injunction, it was previously affirmed by this

court in Davies v. Crosson, 731 Fed. App’x 681 (9th Cir. 2018), and cannot be

reexamined. See S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1136 (9th

Cir. 2004) (“The law of the case doctrine . . . precludes a court from reexamining

an issue previously decided by the same 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. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

2 18-16848