                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 02 2016

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



                            FOR THE NINTH CIRCUIT


CALVIN J. CALVIN,                                No. 15-55430

               Petitioner-Appellant,             D.C. No. 8:13-cv-01393-GHK-
                                                 CW
 v.

ORANGE COUNTY SHERIFF                            MEMORANDUM*
DEPARTMENT; CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,

               Respondents-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                           Submitted October 25, 2016**

Before:        LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      Calvin J. Calvin, an inmate at Orange County Jail, appeals pro se from the

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


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)

(dismissal under Fed. R. Civ. P. 12(b)(6)); Resnick v. Hayes, 213 F.3d 443, 447

(9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

      The district court properly dismissed Calvin’s deliberate indifference claim

because Calvin failed to allege facts sufficient to show that defendants knew of and

disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,

1057-60 (9th Cir. 2004) (a prison official acts with deliberate indifference only if

he or she knows of and disregards an excessive risk to the prisoner’s health;

negligence and a mere difference in medical opinion are insufficient to establish

deliberate indifference).

      To the extent Calvin sought relief under the Americans with Disabilities Act

(“ADA”), the district court properly dismissed this claim because Calvin failed to

allege that he was qualified to participate in the state-run fire camp program, and

was excluded or otherwise discriminated against because of his disability. See

O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (elements of

ADA claim).

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

in the opening brief, or arguments and allegations raised for the first time on


                                           2                                      15-55430
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




                                         3                              15-55430
