                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 20 2012

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




                             FOR THE NINTH CIRCUIT



CLINTON LEE SPENCER,                             No. 11-15964

               Plaintiff - Appellant,            D.C. No. 2:10-cv-00249-SMM

  v.
                                                 MEMORANDUM *
JEFFREY A. SHARP, M.D.; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                   Stephen M. McNamee, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Clinton Lee Spencer, an Arizona state prisoner, appeals pro se from the

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

deliberate indifference and negligence claims. We have jurisdiction under 28




          *
             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).
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 Spencer’s

deliberate indifference claims because Spencer failed to raise a genuine dispute of

material fact as to whether defendants knew of and disregarded an excessive risk to

his vision and eye health, or whether defendants had any involvement in the

alleged violations. See id. at 1057-58 (prison officials act with deliberate

indifference only if they know of and disregard an excessive risk to an inmate’s

health or safety; mere negligence or a difference of medical opinion is

insufficient); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under

section 1983 arises only upon a showing of personal participation . . . .”).

      The district court properly granted summary judgment on Spencer’s

negligence claims because defendants are immune under Arizona law. See Ariz.

Rev. Stat. § 31-201.01(F) (“Any and all causes of action which may arise out of

tort caused by the director, prison officers or employees of the department, within

the scope of their legal duty, shall run only against the state.”); see also Carrillo v.

State, 817 P.2d 493, 498-99 (Ariz. Ct. App. 1991) (distinguishing Arizona tort

claims from § 1983 claims).

      Spencer’s contention that the district court did not provide sufficient time for


                                            2                                     11-15964
discovery is unpersuasive because Spencer failed to request additional time for

discovery or identify evidence that would have precluded summary judgment.

See Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 & n.6 (9th Cir. 2001)

(grounds for granting additional time for discovery under Fed. R. Civ. P. 56(f)).

      Spencer’s contention that the district court erred in considering new

arguments raised in defendants’ reply brief is unpersuasive because the court

considered Spencer’s sur-reply, in which he addressed the new arguments. Cf. JG

v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (new evidence

presented in a reply should not be considered without giving the non-movant an

opportunity to respond).

      Contrary to Spencer’s assertion, the district court granted his motion to add

exhibits in support of his motion for summary judgment.

      We do not consider matters not specifically and distinctly raised and argued

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

(per curiam).

      Spencer’s request for appointment of counsel, set forth in his opening brief,

is denied.

      AFFIRMED.




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