                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 22 2016

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



                            FOR THE NINTH CIRCUIT


CHRISTOPHER T. JACKSON,                          No. 15-15660

              Plaintiff-Appellant,               D.C. No. 4:12-cv-06020-YGR

 v.
                                                 MEMORANDUM*
D. BRIGHT; et al.,

              Defendants-Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      California state prisoner Christopher T. Jackson appeals pro se from the

district court’s summary judgment in 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. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.

      *
             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).
2014) (en banc) (legal rulings on exhaustion); Toguchi v. Chung, 391 F.3d 1051,

1056 (9th Cir. 2004) (summary judgment). We affirm.

      The district court properly granted summary judgment for defendants

Fernandez, Delgado, and Ellis in connection with their handling of Grievance No.

CTF HC 12037007 because Jackson failed to raise a genuine dispute of material

fact as to whether they were deliberately indifferent to his back pain. See Toguchi,

391 F.3d at 1058, 1060 (deliberate indifference is a high legal standard; medical

malpractice, negligence, or a difference of opinion concerning the course of

treatment does not amount to deliberate indifference); see also Peralta v. Dillard,

744 F.3d 1076, 1086-87 (9th Cir. 2014) (en banc) (affirming judgment as a matter

of law on deliberate indifference claim for prison administrative officer who relied

on medical opinions of other doctors who had investigated inmate’s complaint).

      The district court granted defendants’ motions to dismiss for failure to

exhaust administrative remedies Jackson’s claims against defendants Javate,

Bright, Adams, and Ellis in connection with Grievance No. CTF HC 12037457.

The district court analyzed the motions as unenumerated motions to dismiss under

Federal Rule of Civil Procedure 12(b), relying on Wyatt v. Terhune, 315 F.3d 1108

(9th Cir. 2003). In denying Jackson’s motion for reconsideration of that decision,

the district court did not apply our intervening decision in Albino, which held that


                                          2                                      15-15660
failure to exhaust is an affirmative defense that should normally be raised through

a summary judgment motion. See Albino, 747 F.3d at 1166. However, we treat the

district court’s dismissal of these claims and denial of reconsideration as a grant of

summary judgment because the district court considered the parties’ evidence in

determining correctly that Jackson failed to exhaust administrative remedies. See

Draper v. Rosario, 836 F.3d 1072, 1079 (9th Cir. 2016) (explaining that “[r]emand

is not necessary . . . if the district court’s dismissal of the plaintiff’s claim can be

construed as a grant of summary judgment[,]” such as when “it is clear that the

district court considered evidence submitted by the parties in reaching its decision”

(citation and internal quotation marks omitted)); Albino, 747 F.3d at 1176

(defendants must “plead and prove” plaintiff’s failure to exhaust administrative

remedies).

       The district court did not abuse its discretion by denying Jackson leave to

file a supplemental complaint because the supplemental complaint attempted to

introduce separate, distinct, and new causes of action. See Planned Parenthood of

S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (reviewing denial of leave to

file a supplemental complaint for abuse of discretion and stating that a

supplemental complaint “cannot be used to introduce a separate, distinct and new

cause of action” (citation and internal quotation marks omitted)).


                                             3                                      15-15660
      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

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

      Defendants’ motion to strike evidence and arguments in Jackson’s reply

brief, filed on December 2, 2015, is denied.

      AFFIRMED.




                                           4                                      15-15660
