United States v. 2020-07-21 | 19-35171 | DESHAN WATSON V. WASHINGTON STATE DOC | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESHAN WATSON,

Plaintiff-Appellant,

v.

WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,

Defendants-Appellees.

No. 19-35171

D.C. No. 3:17-cv-05968-BHS

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Submitted July 14, 2020
**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Washington state prisoner Deshan Watson 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, violations of Title II of the Americans
with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973

*
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 21 2020

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

2 19-35171
(“RA”), and state law claims. 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 may
affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). We affirm.
The district court properly granted summary judgment on Watson’s
deliberate indifference claim because Watson failed to raise a genuine dispute of
material fact as to whether defendants were deliberately indifferent to Watson’s
medical need for a gluten-free diet. See Toguchi, 391 F.3d. 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 properly granted summary judgment on Watson’s ADA
and RA claims for monetary relief because Watson failed to raise a genuine dispute
of material fact as to whether defendants intentionally discriminated against him.
See Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001), as
amended on denial of reh’g (Oct. 11, 2001) (in order to recover monetary damages
under the ADA and the RA, a plaintiff must show intentional discrimination; the
test for intentional discrimination is deliberate indifference). Although the district
court did not directly address Watson’s request for injunctive relief, denial of

3 19-35171
injunctive relief was proper because Watson had obtained the relief he sought: a
gluten-free diet. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864-65
(9th Cir. 2017) (explaining the mootness doctrine).
The district court properly granted summary judgment on Watson’s medical
negligence claims because Watson failed to raise a genuine dispute of material fact
as to whether defendants breached a duty of care owed to him. See Seybold v. Neu,
19 P.3d 1068, 1073-74 (Wash. Ct. App. 2001) (setting forth the standard of review
and elements of a medical negligence claim under Washington law).
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).
Watson’s request to strike defendants’ argument that he did not establish
medical malpractice as set forth in his opening brief is denied.
AFFIRMED.