NOT FOR PUBLICATION FILED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

DANNY GARCIA, No. 19-15252

Plaintiff-Appellant, D.C. No. 2:14-cv-00093-TLN-

DMC

v.

TSENG, Dr., MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted June 2, 2020**

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

California state prisoner Danny Garcia 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 cross-motions for summary judgment. Guatay

* 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). Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).

We affirm.

The district court properly granted summary judgment for Tseng because

Garcia failed to raise a genuine dispute of material fact as to whether Tseng was

deliberately indifferent to Garcia’s leg-length discrepancy and his back and

shoulder pain. See Toguchi v. Chung, 391 F.3d 1051, 1056-60 (9th Cir. 2004) (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 Estelle v. Gamble, 429 U.S. 97, 107 (1976) (“A medical

decision not to order an X-ray, or like measures, does not represent cruel and

unusual punishment. At most it is medical malpractice”).

We do not consider Garcia’s arguments regarding his First Amendment

claim because it was not properly presented to the district court. See Navajo

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (explaining that

“[w]here . . . the complaint does not include the necessary factual allegations to

state a claim, raising such claim in a summary judgment motion is insufficient to

present the claim to the district court”).

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

2 19-15252 or in the reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

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

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

Garcia’s requests for miscellaneous relief, set forth in the reply brief, are

denied.

AFFIRMED.

3 19-15252