                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

AARON BERT FODGE,                               No. 16-35497

                Plaintiff-Appellant,            D.C. No. 1:13-cv-00331-BLW

 v.
                                                MEMORANDUM*
TINA BOSSOLONO-WILLIAMS, R.N.; et
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, Chief Judge, Presiding

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Aaron Bert Fodge, an Idaho state prisoner, appeals pro se from the district

court’s summary judgment and dismissal order in his 42 U.S.C. § 1983 action

alleging deliberate indifference to a serious medical need. We have jurisdiction

under 28 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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) (summary judgment); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We may affirm on

any basis supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040,

1047 (9th Cir. 2009). We affirm.

      Summary judgment was proper because Fodge failed to raise a genuine

dispute of material fact as to whether the recommended course of treatment was

“medically unacceptable under the circumstances, and was chosen in conscious

disregard of an excessive risk to [Fodge’s] health.” Toguchi, 391 F.3d at 1058

(citation and internal quotation marks omitted) (a difference in medical opinion

does not rise to the level of deliberate indifference).

      The district court properly dismissed Fodge’s claim against Corizon because

Fodge failed to allege facts sufficient to show that any constitutional deprivation

occurred as a result of a custom or policy of Corizon. See Tsao v. Desert Palace,

Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (to make out a claim against a private

entity under § 1983, plaintiff must show that defendant (1) acted under color of

state law, and (2) a constitutional violation was caused by an official policy or

custom of defendant).

      The district court did not abuse its discretion by denying Fodge’s motions

for appointment of counsel because Fodge did not show exceptional circumstances


                                           2                                   16-35497
warranting such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th

Cir. 2009) (setting forth standard of review and explaining the “exceptional

circumstances” requirement).

      The district court did not abuse its discretion by denying Fodge’s request for

judicial notice. See Fed. R. Evid. 201(b) (setting forth the kinds of facts that are

judicially noticeable); Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016

n.9 (9th Cir. 2012) (setting forth standard of review).

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

reconsideration because Fodge failed to establish grounds for such relief. See Sch.

Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.

1993) (setting forth standard of review and grounds for reconsideration).

      Defendant Siegert’s motion to strike “Appendix A” to Fodge’s reply brief

(Docket Entry No. 37) is granted.

      AFFIRMED.




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