Paul Tomasini v. Jessica Duncan

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2023
• Docket: 22-15663
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL C. TOMASINI, No. 22-15663

Plaintiff-Appellant, D.C. No. 2:18-cv-03020-MCE-CKD

v.

JESSICA DUNCAN, Licensed Vocational MEMORANDUM* Nurse; ASHLEY HUGGARD; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendants-Appellees.

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

Submitted June 26, 2023**

Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.

California state prisoner Paul C. Tomasini 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.

* 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). § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004). We affirm.

The district court properly granted summary judgment for defendant

Huggard because Tomasini failed to raise a genuine dispute of material fact as to

whether Huggard acted with deliberate indifference in reporting Tomasini’s

blocked catheter to the triage and treatment area facility. 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).

The district court did not abuse its discretion by deciding the motion for

summary judgment notwithstanding Tomasini’s assertion that additional

documents existed and had not been turned over to him, because Tomasini did not

show what facts he hoped to elicit from further discovery, that these facts existed,

or that they were essential to opposing summary judgment. See Fam. Home & Fin.

Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); see

also Fed. R. Civ. P. 56(d).

The district court did not abuse its discretion by denying Tomasini’s motion

to stay the action. See Am. C.L. Union of Nevada v. Masto, 670 F.3d 1046, 1052

(9th Cir. 2012) (stating standard of review).

We reject as without merit Tomasini’s contention that Huggard’s filing of a

2 22-15663 motion for summary judgment and supporting documents on the last day to file

pretrial motions deprived him of his rights under Rand v. Rowland, 154 F.3d 952

(9th Cir. 1998) (en banc).

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 22-15663