Kelvin Allen v. E. Birdsong, M.d.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN ALLEN,
Plaintiff-Appellant,
v.
E. BIRDSONG, M.D.; et al.,
Defendants-Appellees.
No. 17-15568
D.C. No. 3:14-cv-04109-JST
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Kelvin Allen, 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 Cir.
* 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).
FILED
JAN 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2004), and we affirm.
The district court properly granted summary judgment because Allen failed
to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent in treating Allen’s back problems. See id. at 1057-60 (a
prison official acts with deliberate indifference only if he or she knows of and
disregards an excessive risk to the prisoner’s health; a mere difference in medical
opinion, or even medical negligence, is insufficient to establish deliberate
indifference); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (“Supervisory
liability exists . . . if supervisory officials implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of the
constitutional violation.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Allen’s motion to
appoint counsel because Allen did not demonstrate exceptional circumstances. See
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting forth standard of
review and requirements for appointment of counsel).
We do not consider matters 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).
We do not consider matters not properly presented to the district court. See
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)
(explaining that where “the complaint does not include the necessary factual

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allegations to state a claim, raising such claim in a summary judgment motion is
insufficient to present the claim to the district court”).
AFFIRMED.

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