                                                                            FILED
                            NOT FOR PUBLICATION                             APR 21 2016

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



                             FOR THE NINTH CIRCUIT


MARK HODGE,                                      No. 14-56323

               Plaintiff - Appellant,            D.C. No. 3:10-cv-01684-CAB-
                                                 RBB
 v.

COLOMBINI, M.D.; et al.,                         MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                  Cathy Ann Bencivengo, District Judge, Presiding

                             Submitted April 13, 2016**

Before:        FARRIS, TALLMAN, and BYBEE, Circuit Judges.

      California state prisoner Mark Hodge appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino

v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We may affirm on any

          *
             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).
basis supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389

F.3d 802, 811 (9th Cir. 2004). We affirm.

       Summary judgment was proper on Hodge’s deliberate indifference claims

related to the failure to accommodate his lower bunk chrono. Hodge failed to raise

a genuine dispute of material fact as to whether defendants were deliberately

indifferent to his need for a lower bunk. See Farmer v. Brennan, 511 U.S. 825,

847 (1994) (“[A] prison official cannot be found liable under the Eighth

Amendment . . . unless the official knows of and disregards an excessive risk to

inmate . . . safety[.]”).

       Summary judgment was proper as to Hodge’s deliberate indifference claim

regarding the failure to apply a neck brace after his accident. Hodge failed to raise

a genuine dispute of material fact as to whether the treatment he received was

medically unacceptable or caused him any injury. See Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006) (prisoner must show harm was “caused by” the alleged

indifference); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) (neither

negligence nor a prisoner’s difference of opinion with prison medical authorities

constitutes deliberate indifference; treatment “must be medically unacceptable

under the circumstances” and “chosen in conscious disregard of an excessive risk”

to a prisoner’s health (citation and internal quotation marks omitted)).


                                          2                                     14-56323
      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

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

      AFFIRMED.




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