                                                                             FILED
                            NOT FOR PUBLICATION                              NOV 30 2015

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



                             FOR THE NINTH CIRCUIT


RUSH SPINKS, Jr.,                                No. 14-15645

               Plaintiff - Appellant,            D.C. No. 1:10-cv-01886-AWI-
                                                 SKO
 v.

E. LOPEZ, LVN,                                   MEMORANDUM*

               Defendant - Appellee.


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

                           Submitted November 18, 2015**

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

      Rush Spinks, Jr., 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 Cir.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2004), and we affirm.

      The district court properly granted summary judgment because Spinks failed

to raise a genuine dispute of material fact as to whether Lopez was deliberately

indifferent in the post-operative treatment of Spinks’s hemorrhoids. See id. at

1057-60 (a prison official acts with deliberate indifference only if he or she knows

of and disregards an excessive risk to the prisoner’s health; negligence is

insufficient to establish a constitutional deprivation).

      The district court did not abuse its discretion in denying Spinks’s motion to

appoint an expert because Spinks’s deliberate indifference claim was not so

complex as to require an independent expert. See Walker v. Am. Home Shield Long

Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard

of review).

      The district court did not abuse its discretion in denying Spinks’s motion for

a postponement and additional discovery. See Getz v. Boeing Co., 654 F.3d 852,

867-68 (9th Cir. 2011) (setting forth standard of review and explaining that a

plaintiff must show that the discovery sought would have precluded summary

judgment); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607,

609 (9th Cir. 1992) (setting forth standard of review and “good cause” requirement

to modify a scheduling order).


                                            2                                    14-15645
      The district court did not abuse its discretion in declining to consider

evidence that Spinks offered for the first time with his objections to the magistrate

judge’s findings and recommendations because the district court concluded that

Spinks was capable of submitting evidence prior to his objections. See Jones v.

Blanas, 393 F.3d 918, 935 (9th Cir. 2004) (setting forth standard of review and

discussing circumstances under which a district court may decline to consider new

evidence offered with objections to a magistrate judge’s findings and

recommendations).

      Lopez’s motion to strike Spinks’s new evidence and argument on appeal,

filed on February 12, 2015, is granted. Spinks’s motion to supplement the record

on appeal with additional documentary evidence, filed on March 2, 2015, is denied.

      AFFIRMED.




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