NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL LEE VARNELL, No. 18-35771

Plaintiff-Appellant, D.C. No. 3:15-cv-05443-BHS

v.

MEMORANDUM*

KENNETH SAWYER; et al.,

Defendants-Appellees.

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

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Mitchell Lee Varnell, a Washington 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

U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

* 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). Cir. 2004), and we affirm.

The district court properly granted summary judgment because Varnell

failed to raise a genuine dispute of material fact as to whether defendants were

deliberately indifferent to Varnell’s serious medical needs regarding his back. 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); see also Hallett v. Morgan, 296 F.3d 732, 746

(9th Cir. 2002) (delays in medical treatment do not constitute an Eighth

Amendment violation unless the defendants know that “delays would cause

significant harm”).

We do not consider documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

Varnell’s request for appointment of counsel, set forth in the opening brief,

is denied.

AFFIRMED.

2 18-35771