                                                                            FILED
                             NOT FOR PUBLICATION                            AUG 03 2016

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



                             FOR THE NINTH CIRCUIT


KELVIN EUGENE SIMS,                              No.   15-15759

                Plaintiff-Appellant,             D.C. No. 1:10-cv-01409-BAM

 v.
                                                 MEMORANDUM*
SHERRY LOPEZ; JONATHAN E.
AKANNO,

                Defendants-Appellees.


                     Appeal from the United States District Court
                         for the Eastern District of California
                   Barbara McAuliffe, Magistrate Judge, Presiding**

                              Submitted July 26, 2016***

Before:         SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Kelvin Eugene Sims, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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).
and state law claims. We have jurisdiction under 28 U.S.C. § 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 on Sims’s Eighth

Amendment claim because Sims failed to raise a genuine dispute of material fact as

to whether defendants were deliberately indifferent to his back pain and

hemorrhoids. See id. at 1057-58 (a prison official is deliberately indifferent only if

he or she knows of and disregards an excessive risk to inmate health; a difference

of opinion concerning the course of treatment does not amount to deliberate

indifference).

      The district court properly granted summary judgment on Sims’s medical

malpractice claim because Sims failed to raise a genuine dispute of material fact as

to whether defendants breached the standard of care. See Hutchinson v. United

States, 838 F.2d 390, 393 (9th Cir. 1988) (when applying California law in a

medical malpractice action, where “the defendant supports his motion for summary

judgment with the declarations of experts, a plaintiff who has presented no expert

evidence concerning the required standard of care has failed to make a sufficient

showing that there are genuine factual issues for trial”).

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

court-appointed expert after finding that it did not require a neutral expert to aid its


                                            2                                     15-15759
understanding of the claims. See Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir.

2014) (“A Rule 706 expert typically acts as an advisor to the court on complex

scientific, medical, or technical matters.”); Walker v. Am. Home Shield Long Term

Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard of

review).

      We do not consider arguments and allegations raised for the first time on

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

      All pending motions and requests are denied.

      AFFIRMED.




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