Fred Fulford v. Don M. Griffith, D.P.M.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED FULFORD,

Plaintiff-Appellant,

v.

DON M. GRIFFITH, D.P.M.,

Defendant-Appellee,

and

JOHN CRANSHAW; DENIES REYES,

Defendants.

No. 19-15211

D.C. No. 3:16-cv-00770-RS

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding

Submitted February 4, 2020
**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

California state prisoner Fred Fulford appeals pro se from the district court’s

*
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

FEB 7 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-15211
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. 2004). We
affirm.
The district court properly granted summary judgment because Fulford
failed to raise a genuine dispute of material fact as to whether defendant Griffith
was deliberately indifferent to Fulford’s foot condition. See id. at 1057-60
(deliberate indifference is a “high legal standard” requiring a defendant be aware of
and disregard an excessive risk to an inmate’s health; medical malpractice,
negligence, or a difference of opinion concerning the course of treatment does not
amount to deliberate indifference).
The district court did not abuse its discretion in granting Griffith’s motion
for reconsideration, because the district court considered the wrong reply brief
when it initially ruled on Griffith’s motion for summary judgment. See N.D. Cal.
Civ. R. 7-9(b) (setting forth grounds for reconsideration); see also Hinton v. Pac.
Enters., 5 F.3d 391, 395 (9th Cir. 1993) (setting forth standard of review for
compliance with local rules).
The district court did not abuse its discretion by allowing Griffith to file
successive summary judgment motions. See Hoffman v. Tonnemacher, 593 F.3d
908, 911-12 (9th Cir. 2010) (setting forth standard of review and describing trial

3 19-15211
court’s discretion to permit successive motions for summary judgment).
We reject as unsupported by the record Fulford’s contentions that the district
judge was biased or that Fulford was purposefully misled as to which reply
defendant Griffith meant for the district court to consider.
We do not consider matters raised for the first time on appeal, or 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).
AFFIRMED.