                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 18 2014

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



                             FOR THE NINTH CIRCUIT


WILLIE SCHOBY,                                   No. 13-15815

               Plaintiff - Appellant,            D.C. No. 2:10-cv-00582-KJM-
                                                 JFM
  v.

P. PINKERTON,                                    MEMORANDUM*

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                              Submitted June 12, 2014**

Before:        McKEOWN, WARDLAW, and M. SMITH, Circuit Judges.

       California state prisoner Willie Schoby appeals pro se from the district

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

deliberate indifference to his serious medical needs. We have jurisdiction under 28

U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

          *
             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).
Cir. 2004), and we affirm.

      The district court properly granted summary judgment because Schoby

failed to raise a genuine dispute of material fact as to whether defendant was

deliberately indifferent to his post-bladder surgery dietary needs. See id. at 1057-

60 (a prison official acts with deliberate indifference only if he or she knows of and

disregards an excessive risk to a prisoner’s health; negligence and a mere

difference in medical opinion are insufficient).

      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) (per curiam).

      Schoby’s contention regarding the lack of finality of the district court’s

order granting summary judgment is unpersuasive.

      Schoby’s motion for recall of judgment is denied as moot.

      AFFIRMED.




                                          2                                      13-15815
