                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 20 2013

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




                             FOR THE NINTH CIRCUIT



SALVADOR MENDOZA,                                No. 12-15886

               Plaintiff - Appellant,            D.C. No. 5:10-cv-04415-EJD

  v.
                                                 MEMORANDUM *
PAULA CRINKLAW,

               Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Salvador Mendoza, 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 medical needs. We have jurisdiction under 28 U.S.C.




          *
             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).
§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004), and we affirm.

      The district court properly granted summary judgment because Mendoza

failed to raise a genuine dispute of material fact as to whether defendant was

deliberately indifferent in treating Mendoza’s injured finger. See id. at 1058, 1060

(prison officials act with deliberate indifference only if they know of and disregard

an excessive risk to inmate health; “[a] showing of medical malpractice or

negligence is insufficient to establish a constitutional deprivation under the Eighth

Amendment”).

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

to file a supplemental declaration in opposition to summary judgment because the

fact Mendoza sought to establish was assumed true for purposes of the summary

judgment motion. See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 813

(9th Cir. 2002) (“We review for abuse of discretion evidentiary rulings made in the

context of summary judgment.”).

      Although Mendoza did not receive notice of the requirements to defeat

summary judgment concurrently with the motion for summary judgment, the error

was harmless in this case. See Woods v. Carey, 684 F.3d 934, 935, 941 (9th Cir.

2012) (Rand notice must be served concurrently with a motion for summary


                                           2                                     12-15886
judgment; failure to provide adequate Rand notice “is a ground for reversal unless

it is clear from the record that there are no facts that would permit the inmate to

prevail”).

       Mendoza’s request for judicial notice, filed on November 15, 2012, is denied

as unnecessary because the document he seeks to have this court judicially notice

is already part of the district court record.

       AFFIRMED.




                                                3                               12-15886
