                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 08 2011

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




                             FOR THE NINTH CIRCUIT



ELONZA JESSE TYLER,                              No. 10-17555

               Plaintiff - Appellant,            D.C. No. 1:06-cv-00092-SMS

  v.
                                                 MEMORANDUM *
R. DAVIS; et al.,

               Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                  Sandra M. Snyder, Magistrate Judge, Presiding **

                           Submitted November 8, 2011 ***

Before:        O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

       Elonza Jesse Tyler, a California state prisoner, appeals pro se from the

district court’s judgment after a jury verdict for defendant Smith and summary


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       *
            *
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment for the remaining defendants in his 42 U.S.C. § 1983 action alleging

deliberate indifference to his 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. 2004) (summary judgment); Littlejohn v. United States, 321 F.3d 915, 919 (9th

Cir. 2003) (application of collateral estoppel). We affirm.

      The district court properly granted summary judgment for defendants Davis,

Jackman, and Mendoza-Powers on Tyler’s Eighth Amendment claim regarding

post-operative care for his knee because Tyler did not raise a genuine dispute of

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

medical needs. See Toguchi, 391 F.3d at 1057-58 (prison officials act with

deliberate indifference only if they know of and disregard an excessive risk to an

inmate’s health and safety; a difference of medical opinion about the best course of

medical treatment does not amount to deliberate indifference); Taylor v. List, 880

F.2d 1040, 1045 (9th Cir. 1989) (no respondeat superior liability under § 1983;

plaintiff must show personal involvement in alleged violations).

      The district court properly denied Tyler’s “Motion for an Order of Collateral

Estoppel by Judgment,” because the denial of defendant Smith’s motion for

summary judgment did not preclude Smith from presenting a defense at trial. See

Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25 (1966)


                                          2                                    10-17555
(the denial of a motion for summary judgment “decides only one thing-that the

case should go to trial”).

      We do not consider Tyler’s claim regarding alleged violations of prison

policies because it was “not properly raised before the district court.” Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




                                          3                                    10-17555
