Robert Alexander v. Colette Peters

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 25, 2021
• Docket: 19-35680
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT DALE ALEXANDER, No. 19-35680

Plaintiff-Appellant, D.C. No. 2:15-cv-02179-CL

v. MEMORANDUM* COLETTE S. PETERS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted June 21, 2021**

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Oregon state prisoner Robert Dale Alexander 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 failure-to-protect. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Hamby v. Hammond,

* 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). 821 F.3d 1085, 1092 (9th Cir. 2016), and we affirm.

The district court properly granted summary judgment on Alexander’s

medical deliberate indifference claims because Alexander failed to raise a genuine

dispute of material fact as to whether defendants were deliberately indifferent in

treating his chronic back condition and nasal infection, or in delaying his pain

medication on one occasion. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th

Cir. 2004) (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); Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (a

prisoner alleging deliberate indifference based on a delay in treatment must show

that the delay caused significant harm); Jackson v. McIntosh, 90 F.3d 330, 332 (9th

Cir. 1996) (“[W]here a defendant has based his actions on a medical judgment that

either of two alternative courses of treatment would be medically acceptable under

the circumstances, plaintiff has failed to show deliberate indifference, as a matter

of law.”).

The district court properly granted summary judgment on Alexander’s

failure-to-protect claim because Alexander failed to raise a genuine dispute of

material fact as to whether defendants knew of and disregarded an excessive risk to

his safety by housing him in the same unit as another prisoner who sexually

2 19-35680 harassed him. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[T]he official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.”).

The district court properly granted summary judgment on Alexander’s

retaliation claim because Alexander failed to raise a genuine dispute of material

fact as to whether his housing transfer did not advance a legitimate correctional

goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth

the elements of a retaliation claim in the prison context).

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

motions for appointment of counsel because Alexander did not demonstrate

“exceptional circumstances” warranting the appointment of counsel. See Cano v.

Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting forth standard of review and

“exceptional circumstances” standard for appointment of counsel).

The district court did not abuse its discretion in its handling of discovery.

See Preminger v. Peake, 552 F.3d 757, 768, n.10 (9th Cir. 2008) (setting forth

standard of review for district court’s decisions concerning the scope of discovery).

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.

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