Joel P. Whitney v. J. WALKER, Chief, California Prison Health Care Services;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL P. WHITNEY,
Plaintiff - Appellant,
v.
J. WALKER, Chief, California Prison
Health Care Services; et al.,
Defendants - Appellees.
No. 13-15579
D.C. No. 1:10-cv-01963-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding**
Submitted January 20, 2016***
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
California state prisoner Joel P. Whitney appeals pro se from the district
FILED
JAN 27 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 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636.
*** 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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court’s judgment dismissing 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 a dismissal under Fed. R. Civ. P. 12(b)(6). Doe v.
Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.
The district court properly dismissed Whitney’s action because Whitney
failed to allege facts sufficient to show that any defendant was aware of and
disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,
1058 (9th Cir. 2004) (to be deliberately indifferent, treatment must be medically
unacceptable under the circumstances and chosen in conscious disregard of an
excessive risk to a prisoner’s health); Nat’l Ass’n for the Advancement of
Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in
determining whether the complaint states a claim for relief, “we may consider facts
contained in documents attached to the complaint”).
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) (per curiam).
Whitney’s request for appointment of counsel on appeal, set forth in his
opening brief, is denied.
AFFIRMED.
13-15579 2

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