Robert Machlan v. DWIGHT NEVEN, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MACHLAN,
Plaintiff - Appellant,
v.
DWIGHT NEVEN, Warden; et al.,
Defendants - Appellees.
No. 15-15700
D.C. No. 3:13-cv-00337-MMD-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Nevada state prisoner Robert Machlan appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s ruling on cross-motions for summary judgment, Guatay Christian
FILED
AUG 03 2016
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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Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011), and we
affirm.
The district court properly granted summary judgment for defendants on
Machlan’s due process claim regarding his time in disciplinary and administrative
segregation because Machlan failed to raise a genuine dispute of material fact as to
whether his segregation implicated a protected liberty interest. See Sandin v.
Conner, 515 U.S. 472, 483-84 (1995) (holding that a constitutionally protected
liberty interest arises only when a restraint imposes an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”).
Machlan’s contention that he did not receive appropriate “time cuts” for his
disciplinary segregation sentence is unsupported by the record.
The district court properly granted summary judgment for defendants on
Machlan’s deliberate indifference claim because Machlan failed to raise a genuine
dispute of material fact as to whether defendants were deliberately indifferent to a
serious medical need as a result of his housing placement and the use of restraints.
See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a claim for deliberate
indifference requires showing (1) a serious medical need, which exists if a failure
to treat a prisoner’s condition could result in further significant injury or the
unnecessary and wanton infliction of pain, and (2) a purposeful act or failure to
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respond to an inmate’s pain or serious medical need and harm caused by the
indifference).
The district court properly granted summary judgment for defendants on
Machlan’s Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims
because Machlan failed to raise a genuine dispute of material fact as to whether
defendants discriminated against him or denied him a benefit because of a
disability. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir.
2007) (elements of claims under Title II of the ADA and the Rehabilitation Act).
Machlan’s contention that the district court ruled against him because he
failed to object to the magistrate judge’s report and recommendation is without
merit because the district court reviewed the record de novo.
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).
Machlan’s request for the appointment of counsel, set forth in his reply brief,
is denied.
AFFIRMED.
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