ORLANDO BLACKWELL V. D. DOSUELLA, No. 15-16630 (9th Cir. 2016)
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NOT FOR PUBLICATION FILED AUG 25 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ORLANDO BLACKWELL, Plaintiff-Appellant, v. U.S. COURT OF APPEALS No. 15-16630 D.C. No. 2:13-cv-02036-TLN-EFB MEMORANDUM* D. DOSUELLA; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding Submitted August 16, 2016** Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges. California state prisoner Orlando Blackwell appeals pro se from the district 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 for failure to state a claim under Federal * 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). Rule of Civil Procedure 12(b)(6). Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). We affirm. The district court properly dismissed Blackwell’s action because Blackwell failed to allege facts sufficient to show that defendants were deliberately indifferent to his ruptured Achilles tendon. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (prison officials are deliberately indifferent only if they know of and disregard an excessive risk to inmate health; neither a difference of opinion concerning the course of treatment nor mere negligence in diagnosing or treating a medical condition amounts to deliberate indifference); see also 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 a complaint states a claim for relief, a court may consider facts contained in documents attached to the complaint). We do not consider facts or documents not presented to the district court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). Further, we do not consider issues or arguments not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). 2 15-16630 We reject as without merit Blackwell’s contentions that the district court’s application of Rule 12(b)(6) violated his First Amendment or Fourteenth Amendment rights. We treat Blackwell’s motion to file an oversized reply brief (Docket Entry No. 20) as a motion to file an oversized and supplemental reply brief, and grant the motion. The Clerk shall file the supplemental reply brief at Docket Entry No. 19. AFFIRMED. 3 15-16630
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