Damon Williams v. John Chau

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 20-55875
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAMON WILLIAMS, No. 20-55875

Petitioner-Appellant, D.C. No. 3:17-cv-00517-CAB-KSC

v. MEMORANDUM* JOHN CHAU, Physician; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted November 8, 2021 **

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Damon Williams 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 and state law 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). 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 Williams

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

deliberately indifferent to Williams’s complaints of dizziness. See id. at 1060-61

(a prison official acts with deliberate indifference only if he or she knows of and

disregards a risk to the prisoner’s health; medical malpractice, negligence or

difference of opinion concerning the course of treatment does not amount to

deliberate indifference).

The district court did not abuse its discretion by denying Williams’s requests

for entry of default because Chau did not fail to plead or otherwise defend. See

Fed. R. Civ. P. 55(a) (providing for entry of default when a defendant “has failed

to plead or otherwise defend”); Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d

884, 886 (9th Cir. 2001) (setting forth standard of review).

The district court did not abuse its discretion by denying Williams’s requests

for appointment of an expert under Federal Rule of Evidence 706 because such an

appointment was not necessary for the court to make its determination. See

Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A Rule 706 expert

typically acts as an advisor to the court on complex scientific, medical, or technical

matters.”); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065,

1071 (9th Cir. 1999) (setting forth standard of review).

2 20-55875 The district court did not abuse its discretion by denying Williams’s motion

for reconsideration because Williams failed to establish any basis for relief. See

Sch. Dist. No. 1J Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration).

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.

3 20-55875