RUSH SPINKS, Jr. v. E. Lopez, Lvn

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSH SPINKS, Jr.,
Plaintiff - Appellant,
v.
E. LOPEZ, LVN,
Defendant - Appellee.
No. 14-15645
D.C. No. 1:10-cv-01886-AWI-
SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Rush Spinks, Jr., 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.
FILED
NOV 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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2004), and we affirm.
The district court properly granted summary judgment because Spinks failed
to raise a genuine dispute of material fact as to whether Lopez was deliberately
indifferent in the post-operative treatment of Spinks’s hemorrhoids. 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; negligence is
insufficient to establish a constitutional deprivation).
The district court did not abuse its discretion in denying Spinks’s motion to
appoint an expert because Spinks’s deliberate indifference claim was not so
complex as to require an independent expert. See Walker v. Am. Home Shield Long
Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard
of review).
The district court did not abuse its discretion in denying Spinks’s motion for
a postponement and additional discovery. See Getz v. Boeing Co., 654 F.3d 852,
867-68 (9th Cir. 2011) (setting forth standard of review and explaining that a
plaintiff must show that the discovery sought would have precluded summary
judgment); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607,
609 (9th Cir. 1992) (setting forth standard of review and “good cause” requirement
to modify a scheduling order).
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The district court did not abuse its discretion in declining to consider
evidence that Spinks offered for the first time with his objections to the magistrate
judge’s findings and recommendations because the district court concluded that
Spinks was capable of submitting evidence prior to his objections. See Jones v.
Blanas, 393 F.3d 918, 935 (9th Cir. 2004) (setting forth standard of review and
discussing circumstances under which a district court may decline to consider new
evidence offered with objections to a magistrate judge’s findings and
recommendations).
Lopez’s motion to strike Spinks’s new evidence and argument on appeal,
filed on February 12, 2015, is granted. Spinks’s motion to supplement the record
on appeal with additional documentary evidence, filed on March 2, 2015, is denied.
AFFIRMED.
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