BEN BUFFALO V. STATE OF ARIZONA, No. 19-17401 (9th Cir. 2021)

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FILED NOT FOR PUBLICATION JAN 27 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BEN BUFFALO, U.S. COURT OF APPEALS No. 19-17401 Plaintiff-Appellant, v. D.C. No. 4:18-cv-00248-RCC MEMORANDUM* STATE OF ARIZONA, named as State of Arizona, Attorney General; BOBBIE WOOLLEY, State Trooper, Defendants-Appellees, and ARIZONA DEPARTMENT OF PUBLIC SAFETY, named as Department of Public Safety, Risk Management Division, Defendant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. * 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). Ben Buffalo appeals pro se from the district court’s summary judgment in his diversity action alleging wrongful death 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 affirm. The district court properly granted summary judgment on Buffalo’s negligence claims stemming from defendant Woolley’s conduct because Buffalo failed to raise a genuine dispute of material fact as to whether defendants breached an existing duty or were the proximate cause of Bryce Buffalo’s auto accident. See Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (en banc) (setting forth elements of a negligence claim under Arizona law); see also In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (describing non-moving party’s burden to show specific facts demonstrating existence of genuine disputes for trial). The district court did not err by deferring consideration of the summary judgment motion without formally ruling on Buffalo’s request for additional time to take discovery. See Fed. R. Civ. P. 56(d) (setting forth the district court’s options upon a proper showing by the nonmovant that it cannot present facts essential to justify its opposition to summary judgment); Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994) (setting forth standard of review for district court’s failure to address a Rule 56(d) motion before granting summary judgment; decision on a Rule 56(d) motion need not be explicitly stated). 2 19-17401 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). AFFIRMED. 3 19-17401

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