Orlando Blackwell v. D. Dosuella

Ninth Circuit

Orlando Blackwell v. D. Dosuella

668 F. App'x 736

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 25, 2016

Docket15-16630

StatusUnpublished

This text of 668 F. App'x 736 (Orlando Blackwell v. D. Dosuella) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Orlando Blackwell v. D. Dosuella, 668 F. App'x 736 (9th Cir. 2016).

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Opinion

MEMORANDUM **

California state prisoner Orlando Blackwell appeals pro se from the district court’s judgment dismissing 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 a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). We affirm.

The district court properly dismissed Blackwell’s action because Blackwell failed to allege facts sufficient to show that defendants were deliberately indifferent to his ruptured Achilles tendon. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (prison officials are deliberately indifferent only if they know of and disregard an excessive risk to inmate health; neither a difference of opinion concerning the course of treatment nor mere negligence in diagnosing or treating a medical condition amounts to deliberate indifference); see also Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in determining whether a complaint states a claim for relief, a court may consider facts contained in documents attached to the complaint).

We do not consider facts or documents not presented to the district court, See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). Further, we do not consider issues or arguments not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

We reject as without merit Blackwell’s contentions that the district court’s application of Rule 12(b)(6) violated his First Amendment or Fourteenth Amendment rights.

We treat Blackwell’s motion to file an oversized reply brief (Docket Entry No. 20) as a motion to file an oversized and supplemental reply brief, and grant the motion. The Clerk shall file the supplemental reply brief at Docket Entry No. 19.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *738 ed by Ninth Circuit Rule 36-3,

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MEMORANDUM **

California state prisoner Orlando Blackwell appeals pro se from the district court’s judgment dismissing 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 a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). We affirm.

The district court properly dismissed Blackwell’s action because Blackwell failed to allege facts sufficient to show that defendants were deliberately indifferent to his ruptured Achilles tendon. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (prison officials are deliberately indifferent only if they know of and disregard an excessive risk to inmate health; neither a difference of opinion concerning the course of treatment nor mere negligence in diagnosing or treating a medical condition amounts to deliberate indifference); see also Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in determining whether a complaint states a claim for relief, a court may consider facts contained in documents attached to the complaint).

We do not consider facts or documents not presented to the district court, See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). Further, we do not consider issues or arguments not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

We reject as without merit Blackwell’s contentions that the district court’s application of Rule 12(b)(6) violated his First Amendment or Fourteenth Amendment rights.

We treat Blackwell’s motion to file an oversized reply brief (Docket Entry No. 20) as a motion to file an oversized and supplemental reply brief, and grant the motion. The Clerk shall file the supplemental reply brief at Docket Entry No. 19.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *738 ed by Ninth Circuit Rule 36-3,

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