Kelvin Eugene Sims v. Sherry Lopez; Jonathan E. Akanno

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN EUGENE SIMS,
Plaintiff-Appellant,
v.
SHERRY LOPEZ; JONATHAN E.
AKANNO,
Defendants-Appellees.
No. 15-15759
D.C. No. 1:10-cv-01409-BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding**
Submitted July 26, 2016***
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Kelvin Eugene Sims, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal
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 Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** 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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and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Sims’s Eighth
Amendment claim because Sims failed to raise a genuine dispute of material fact as
to whether defendants were deliberately indifferent to his back pain and
hemorrhoids. See id. at 1057-58 (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 does not amount to deliberate
indifference).
The district court properly granted summary judgment on Sims’s medical
malpractice claim because Sims failed to raise a genuine dispute of material fact as
to whether defendants breached the standard of care. See Hutchinson v. United
States, 838 F.2d 390, 393 (9th Cir. 1988) (when applying California law in a
medical malpractice action, where “the defendant supports his motion for summary
judgment with the declarations of experts, a plaintiff who has presented no expert
evidence concerning the required standard of care has failed to make a sufficient
showing that there are genuine factual issues for trial”).
The district court did not abuse its discretion by denying Sims’s request for a
court-appointed expert after finding that it did not require a neutral expert to aid its
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understanding of the claims. See Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir.
2014) (“A Rule 706 expert typically acts as an advisor to the court on complex
scientific, medical, or technical matters.”); Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard of
review).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED.
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