Paul C. Tomasini v. JESSICA DUNCAN, Licensed Vocational Nurse

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL C. TOMASINI,
Plaintiff-Appellant,
v.
JESSICA DUNCAN, Licensed Vocational
Nurse; ASHLEY HUGGARD;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
Defendants-Appellees.
No. 22-15663
D.C. No. 2:18-cv-03020-MCE-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
California state prisoner Paul C. Tomasini 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.
* 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
JUL 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 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 for defendant
Huggard because Tomasini failed to raise a genuine dispute of material fact as to
whether Huggard acted with deliberate indifference in reporting Tomasini’s
blocked catheter to the triage and treatment area facility. See id. at 1057-60 (a
prison official is deliberately indifferent only if he or she knows of and disregards
an excessive risk to inmate 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 by deciding the motion for
summary judgment notwithstanding Tomasini’s assertion that additional
documents existed and had not been turned over to him, because Tomasini did not
show what facts he hoped to elicit from further discovery, that these facts existed,
or that they were essential to opposing summary judgment. See Fam. Home & Fin.
Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); see
also Fed. R. Civ. P. 56(d).
The district court did not abuse its discretion by denying Tomasini’s motion
to stay the action. See Am. C.L. Union of Nevada v. Masto, 670 F.3d 1046, 1052
(9th Cir. 2012) (stating standard of review).
We reject as without merit Tomasini’s contention that Huggard’s filing of a

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motion for summary judgment and supporting documents on the last day to file
pretrial motions deprived him of his rights under Rand v. Rowland, 154 F.3d 952
(9th Cir. 1998) (en banc).
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).
AFFIRMED.

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