                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 02 2013

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




                             FOR THE NINTH CIRCUIT



SMILEY JAMES HARRIS, AKA James                   No. 11-16246
Lavell Harris,
                                                 D.C. No. 3:09-cv-03168-SI
               Plaintiff - Appellant,

  v.                                             MEMORANDUM *

ROBERT HOWE; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE and FISHER, Circuit Judges.

       Smiley James Harris, also known as James Lavell Harris, 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). We affirm.

      The district court properly granted summary judgment because Harris failed

to raise a genuine dispute of material fact as to whether he had a serious medical

need, or whether defendants were deliberately indifferent to his health by not

providing him with medical marijuana, a wheelchair, or a “no standing” chrono.

See id. at 1058. At best, Harris alleged a difference of opinion as to the appropriate

treatment for his alleged back pain, but he has not shown that defendants’ decisions

were “medically unacceptable under the circumstances,” or made “in conscious

disregard of an excessive risk to [Harris’s] health.” Id. (citation and internal

quotation marks omitted).

      Harris’s contention that the district court should have construed his

complaint as including claims of excessive force is rejected.

      We do not consider issues not specifically and distinctly raised and argued in

the opening brief or issues raised for the first time on appeal. See Smith v. Marsh,

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

      AFFIRMED.




                                           2                                       11-16246
