                                                                            FILED
                             NOT FOR PUBLICATION                            JUL 10 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MARCUS RUBEN ELLINGTON,                          No. 10-17507

               Plaintiff - Appellant,            D.C. No. 2:04-cv-00666-RSL-
                                                 JLW
  v.

D. L. RUNNELS; et al.,                           MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Robert S. Lasnik, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Marcus Ruben Ellington, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We




          *
             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).
review de novo a dismissal for failure to state a claim, Shwarz v. United States, 234

F.3d 428, 432 (9th Cir. 2000), and the entry of summary judgment, Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

       The district court properly dismissed Ellington’s Americans with Disabilities

Act (“ADA”) claims because the claims were based on inadequate treatment. See

Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA

prohibits discrimination because of disability, not inadequate treatment for

disability.”).

       The district court properly granted summary judgment on Ellington’s

deliberate indifference claims because Ellington failed to raise a genuine dispute of

material fact as to whether defendants were deliberately indifferent to his medical

and mental health needs. See Toguchi, 391 F.3d at 1057-58 (a prison official acts

with deliberate indifference only if he or she knows of and disregards an excessive

risk to the prisoner’s health and safety; negligence and a mere difference in

medical opinion are insufficient).

       The district court properly granted summary judgment on Ellington’s

retaliation claim because Ellington failed to raise a genuine dispute as to whether

defendants solicited inmates to assault him or whether the assault was “because of”

Ellington’s engagement in protected activity. See Rhodes v. Robinson, 408 F.3d


                                          2                                     10-17507
559, 567 (9th Cir. 2005) (to establish retaliation, prisoner must demonstrate that

the adverse action was taken because of the prisoner’s protected activity).

         The district court properly granted summary judgment on Ellington’s failure

to protect claim because Ellington failed to raise a genuine dispute as to whether

defendants were deliberately indifferent to a substantial risk when they housed him

with a Crip-affiliated inmate. See Farmer v. Brennan, 511 U.S. 825, 837, 843-44

(1994) (a prison official is not liable for failing to protect one inmate from another

unless the prisoner shows that he was housed under conditions that posed a

substantial risk of serious harm, and that the prison official acted with deliberate

indifference to the prisoner’s safety).

         We decline to consider arguments that were not raised in the opening brief

or before the district court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999).

         Ellington’s remaining contentions are unpersuasive.

         AFFIRMED.




                                           3                                    10-17507
