GREGORY SMITH V. K. KUMAR, No. 17-16444 (9th Cir. 2018)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 19 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GREGORY ANDRE SMITH, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 17-16444 D.C. No. 5:15-cv-05720-BLF v. MEMORANDUM* K. KUMAR; L. GAMBOA, M.D., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding Submitted April 11, 2018** Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges. Gregory Andre Smith, a California 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). We affirm. The district court properly granted summary judgment because Smith failed to raise a genuine dispute of material fact as to whether defendants were deliberately indifferent to his chronic foot pain. See id. 1057-60 (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health; a difference of opinion concerning the course of treatment, medical malpractice, and negligence in diagnosing or treating a medical condition do not amount to deliberate indifference); Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (delays must result in substantial harm to constitute deliberate indifference). We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We reject as unsupported by the record Smith’s contention that the district court failed to consider the entire record. Smith’s request for costs, set forth in his opening brief, is denied. AFFIRMED. 2 17-16444

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