Berton G. Toavs v. Robert Bannister;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERTON G. TOAVS,
Plaintiff-Appellant,
v.
ROBERT BANNISTER; et al.,
Defendants-Appellees.
No. 15-17199
D.C. No. 3:12-cv-00449-MMD-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Berton G. Toavs, a Nevada 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
MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2004). We affirm.
The district court properly granted summary judgment because Toavs failed
to raise a genuine dispute of material fact as to whether defendants Dr. Bannister,
Dr. Johns, or Dr. Mar were deliberately indifferent in treating Toavs’s medical
problems. See id. at 1057, 1060 (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 difference in opinion is insufficient to establish deliberate indifference).
The district court did not abuse its discretion in denying Toavs’s motion to
amend his complaint because Toavs failed to establish “good cause” for his delay
in seeking amendment, and amendment would have been futile. See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607, 609-10 (9th Cir. 1992) (setting
forth standard of review and “good cause” requirement to modify a scheduling
order); see also Chappel v. Lab. Corp., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A
district court acts within its discretion to deny leave to amend when amendment
would be futile . . . .”).
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).
Toavs’s opposed motion to transmit physical exhibits (Docket Entry No. 11)
is denied.

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Toavs’s request for costs, set forth in his opening brief, is denied.
AFFIRMED.

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