Samuel Windham, Jr. v. Manuel Sabin

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2018
• Docket: 17-17113
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SAMUEL WINDHAM, Jr., No. 17-17113

Plaintiff-Appellant, D.C. No. 2:15-cv-01058-MCE- CKD v.

MANUEL SABIN; ZITONG YUN, R.N., MEMORANDUM*

Defendants-Appellees.

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

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges

California state prisoner Samuel Windham, Jr. 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 Windham

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

deliberately indifferent in the treatment of Windham’s leg skin grafts. 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; 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).

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

for appointment of counsel because Windham did not demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and “exceptional circumstances” requirement for

appointment of counsel).

The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Windham’s state law negligence claim. See

Fichman v. Media Ctr., 512 F.3d 1157, 1162-63 (9th Cir. 2008) (district court does

not abuse its discretion in declining to exercise supplemental jurisdiction over state

claims after granting summary judgment on federal claims).

We reject as meritless Windham’s contentions that he stated a colorable

Fourteenth Amendment claim in his operative complaint, his Seventh Amendment

2 17-17113 right to a jury trial was violated, and his procedural due process rights were

violated when his action was removed without his consent to federal court.

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 17-17113