                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JERRY DAVID AGUILAR,                            No. 19-55179

                Plaintiff-Appellant,            D.C. No. 3:15-cv-02446-MMA-
                                                AGS
 v.

DARRYL BATES, M.D.; et al.,                     MEMORANDUM*

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                             Submitted April 7, 2020**

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      California state prisoner Jerry David Aguilar 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. Toguchi v. Chung, 391 F.3d 1051, 1056 (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).
2004). We affirm.

      The district court properly granted summary judgment because Aguilar

failed to raise a genuine dispute of material fact as to whether defendants were

deliberately indifferent to Aguilar’s broken ankle and need for surgery. See id. at

1057-60 (a prison official is deliberately indifferent only if he or she knows of and

disregards an excessive risk to inmate health; medical malpractice, negligence, or a

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

deliberate indifference); Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002)

(delays in medical treatment do not constitute an Eighth Amendment violation

unless the defendants know that “delays would cause significant harm”).

      The district court did not abuse its discretion by denying Aguilar’s motion

for appointment of counsel because Aguilar failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and “exceptional circumstances” requirement for

appointment of counsel).

      The district court did not abuse its discretion by denying Aguilar’s request

for appointment of an expert under Federal Rule of Evidence 706 because such an

appointment was not necessary for the court to make its determination. 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


                                          2                                    19-55179
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 Aguilar’s arguments regarding the district court’s order

denying Aguilar’s post-judgment motions to reconsider, amend or alter the

judgment because Aguilar failed to file a new or amended notice of appeal after the

district court denied his post-judgment motions. See Fed. R. App. P. 4(a)(4)(B)(ii);

Harris v. Mangum, 863 F.3d 1133, 1138 n.1 (9th Cir. 2017).

      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).

      AFFIRMED.




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