Fernando Arnulfo Trejo, Iii v. John Wohler

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO ARNULFO TREJO, III,
Plaintiff - Appellant,
v.
JOHN WOHLER,
Defendant - Appellee.
No. 13-16134
D.C. No. 2:11-cv-01803-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Fernando Arnulfo Trejo, III, an Arizona 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
FILED
AUG 1 2014
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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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 because Trejo failed
to raise a genuine dispute of material fact as to whether Wohler was deliberately
indifferent by changing Trejo’s medication, and then re-prescribing Trejo’s
original medication six months later due to the side effects of the new medication.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately
indifferent only if he or she “knows of and disregards an excessive risk to inmate
health”); Toguchi, 391 F.3d at 1058-60 (neither a difference of opinion concerning
the course of treatment nor negligence in treating a medical condition amounts to
deliberate indifference); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (a
plaintiff “must show that the course of treatment the doctor[] chose was medically
unacceptable under the circumstances”).
The district court did not abuse its discretion by denying Trejo’s application
for appointment of counsel because Trejo failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
We do not consider arguments and allegations raised for the first time on
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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