                                                                              FILED
                            NOT FOR PUBLICATION                               FEB 19 2013

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



                             FOR THE NINTH CIRCUIT


WALTER V. RODENHURST, III,                         No. 11-17032

               Plaintiff - Appellant,              D.C. No. 2:10-cv-01237-GMS-
                                                   MHB
  v.

KAY BAUMAN, M.D.; et al.,                          MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                            Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Hawaii state prisoner Walter V. Rodenhurst, III, appeals pro se from the

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

deliberate indifference, violations of his right of access to the courts, and state law



          *
             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).
claims. We have jurisdiction under 28 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 Rodenhurst’s

Eighth Amendment claims because Rodenhurst failed to raise a genuine dispute of

material fact as to whether defendants acted with deliberate indifference in

providing medical care for his conditions, including his pancreatitis and

hypertension, and in failing to provide him with a special diet in a consistent

manner. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (to establish

deliberate indifference, the prisoner must show “(a) a purposeful act or failure to

respond to a prisoner’s pain or possible medical need and (b) harm caused by the

indifference”); Toguchi, 391 F.3d at 1057-58 (neither negligence nor a difference

in medical opinion is sufficient to establish deliberate indifference).

      The district court properly granted summary judgment on Rodenhurst’s

access-to-courts claim because Rodenhurst failed to raise a triable dispute as to

whether he suffered actual injury. See Lewis v. Casey, 518 U.S. 343, 348-49

(1996) (access-to-courts claim requires actual prejudice to contemplated or existing

litigation, such as inability to meet a filing deadline or to present a claim).

      The district court properly granted summary judgment on Rodenhurst’s

negligence claims because Rodenhurst failed to introduce expert testimony


                                            2                                     11-17032
demonstrating that defendants’ actions fell below the standard of care. See Smith

v. Hines, 261 P.3d 1129, 1133 (Okla. 2011) (expert testimony is required to

establish medical negligence unless it is readily apparent to a layman); Ryan v. S.F.

Peaks Trucking Co., Inc., 262 P.3d 863, 869-70 (Ariz. Ct. App. 2011) (same).

      The district court properly granted summary judgment on Rodenhurst’s

claim relating to access to his private physician because, even assuming that

section 353-13.5 of the Hawaii Revised Statutes creates a private right of action,

Rodenhurst failed to raise a genuine dispute as to whether he complied with the

administrative requirements for gaining such access. See Haw. Rev. Stat. § 353-

13.5 (noting that “such care shall conform to the department’s rules and established

practices including any requirements concerning advance notice of visits with the

prisoner”).

      The district court properly dismissed as time-barred Rodenhurst’s claims

stemming from his incarceration in Hawaii prior to his April 2006 transfer because

Rodenhurst filed his complaint more than two years after exhausting administrative

remedies for those claims. See Haw. Rev. Stat. § 657-7 (two-year statute of

limitations for personal injury actions); Jones v. Blanas, 393 F.3d 918, 926-27 (9th

Cir. 2004) (setting forth standard of review and noting that, “for actions under 42

U.S.C. § 1983, courts apply the forum state’s statute of limitations for personal


                                          3                                     11-17032
injury actions”); see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005)

(“[T]he applicable statute of limitations must be tolled while a prisoner completes

the mandatory exhaustion process.”).

      Rodenhurst’s appeal of the denial of his request for a temporary restraining

order is moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450

(9th Cir. 1992) (when underlying claims have been decided, the reversal of a denial

of a preliminary injunction would have no practical consequences, and the issue is

therefore moot).

      Rodenhurst’s arguments concerning defendants’ motion to dismiss for

failure to exhaust are unpersuasive.

      We do not consider arguments and allegations raised for the first time on

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

      AFFIRMED.




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