                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

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



                             FOR THE NINTH CIRCUIT


TYSHON MALEKE HARMON,                            No. 12-15780

               Plaintiff - Appellant,            D.C. No. 5:10-cv-04053-LHK

  v.
                                                 MEMORANDUM*
RICHARD MACK, Doctor, Salinas Valley
State Prison; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                       Lucy Koh, District Judge, Presiding

                            Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       California state prisoner Tyshon Maleke Harmon 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


          *
             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).
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 for defendants Mack,

Pajong, Pompan, and Sevier because Harmon failed to raise a genuine dispute of

material fact as to whether these defendants were deliberately indifferent in

treating his knee pain. See id. at 1060 (“Deliberate indifference is a high legal

standard. A showing of medical malpractice or negligence is insufficient to

establish a constitutional deprivation under the Eighth Amendment.”); see also Jett

v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (deliberate indifference requires “a

purposeful act or failure to respond to a prisoner’s pain or possible medical need”).

      The district court did not abuse its discretion by dismissing Harmon’s

deliberate indifference claims against the remaining defendants for failure to effect

timely service under Fed. R. Civ. P. 4(m) because Harmon failed to show good

cause why he did not provide the United States Marshal with accurate and

sufficient information for these defendants. See Walker v. Sumner, 14 F.3d 1415,

1422 (9th Cir. 1994) (no abuse of discretion where plaintiff did not provide the

Marshal with sufficient information to serve the defendant), abrogated in part on

other grounds by Sandin v. Conner, 515 U.S. 472 (1995); see also Lemoge v.

United States, 587 F.3d 1188, 1198 n.3 (9th Cir. 2009) (“In addition to excusable


                                           2                                    12-15780
neglect, a plaintiff may be required to show the following factors to bring the

excuse to the level of good cause: (a) the party to be served personally received

actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c)

plaintiff would be severely prejudiced if his complaint were dismissed.” (citation

and internal quotation marks omitted)).

      The district court did not abuse its discretion by granting a stay of discovery

and denying Harmon’s motions relating to discovery. See Hallett v. Morgan, 296

F.3d 732, 751 (9th Cir. 2002) (trial court has broad discretion to permit or deny

discovery, and “its decision to deny discovery will not be disturbed except upon

the clearest showing that denial of discovery results in actual and substantial

prejudice” (citation and internal quotation marks omitted)); see also Little v. City of

Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (no abuse of discretion by staying

discovery when the discovery could not have affected summary judgment).

      The district court did not abuse its discretion by denying Harmon’s motion

for appointment of counsel because Harmon did not demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting

forth the standard of review and explaining the “exceptional circumstances”

requirement).




                                           3                                      12-15780
      We do not consider issues not explicitly raised and argued in the opening

brief, or arguments and allegations raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




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