                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PAUL MONTANEZ,                                   No. 15-16704

              Plaintiff-Appellant,               D.C. No. 1:12-cv-00250-AWI-
                                                 DLB
 v.

VELASCO, Correctional Officer; et al.,           MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Paul Montanez, 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 and violations of the Americans with

Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). We have jurisdiction

      *
             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).
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 because Montanez

failed to raise a genuine dispute of material fact as to whether by using the

restraints defendants were deliberately indifferent to his health. See Farmer v.

Brennan, 511 U.S. 825, 834, 837 (1994) (setting forth elements of a claim for

violation of the Eighth Amendment and explaining that a prison official is

deliberately indifferent only if he or she “knows of and disregards an excessive risk

to inmate health”); cf. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1251-54 (9th

Cir. 2016) (plaintiff raised a genuine dispute of material fact as to whether the use

of restraints during labor and post-partum recovery presented a substantial risk of

harm to her and her baby).

      The district court properly granted summary judgment on Montanez’s claims

under the ADA and RA because Montanez failed to raise a genuine dispute of

material fact that the alleged violation arose from discrimination against him

because of a disability. See Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022

(9th Cir. 2010) (“The ADA prohibits discrimination because of disability, not

inadequate treatment for disability.”); Zukle v. Regents of Univ. of Cal., 166 F.3d

1041, 1045 n.11 (9th Cir. 1999) (“There is no significant difference in analysis of


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the rights and obligations created by the ADA and the [RA]”).

      The district court did not abuse its discretion in denying Montanez’s motions

for reconsideration under Federal Rule of Civil Procedure 60(b) because Montanez

failed to demonstrate any basis for relief. See Sch. Dist. No. 1J, Multnomah Cnty.,

Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of

review and grounds for relief from judgment under Rule 60(b)).

      The district court did not abuse its discretion in denying Montanez’s request

for an extension of time to conduct discovery after the discovery cut-off because

Montanez failed to show that good cause for the extension existed. See Fed. R.

Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the

judge’s consent.”); Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir.

2003) (noting the district court’s broad discretion in discovery matters).

      The district court did not abuse its discretion in denying Montanez’s request

for appointment of counsel because Montanez did not show exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirements for appointment of counsel).

      We do not consider Montanez’s argument regarding his failure to receive the

deposition notice before his deposition because Montanez failed to raise this

argument before the district court. See Armstrong v. Brown, 768 F.3d 975, 981


                                          3                                     15-16704
(9th Cir. 2014) (arguments not raised before the district court are waived).

      We do not consider matters 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).

      AFFIRMED.




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