Gregory Smith v. K. Kumar

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2018
• Docket: 17-16444
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORY ANDRE SMITH, No. 17-16444

Plaintiff-Appellant, D.C. No. 5:15-cv-05720-BLF

v. MEMORANDUM* K. KUMAR; L. GAMBOA, M.D.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Gregory Andre Smith, a California state prisoner, 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

* 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). Cir. 2004). We affirm.

The district court properly granted summary judgment because Smith failed

to raise a genuine dispute of material fact as to whether defendants were

deliberately indifferent to his chronic foot pain. See id. 1057-60 (a prison official

is deliberately indifferent only if he or she knows of and disregards an excessive

risk to inmate health; a difference of opinion concerning the course of treatment,

medical malpractice, and negligence in diagnosing or treating a medical condition

do not amount to deliberate indifference); Jett v. Penner, 439 F.3d 1091, 1098 (9th

Cir. 2006) (delays must result in substantial harm to constitute deliberate

indifference).

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 reject as unsupported by the record Smith’s contention that the district

court failed to consider the entire record.

Smith’s request for costs, set forth in his opening brief, is denied.

AFFIRMED.

2 17-16444