                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 02 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN GREGORY WILLIAMS,                         No.   17-15490

              Plaintiff-Appellant,               D.C. No. 3:13-cv-05213-VC

 v.
                                                 MEMORANDUM*
LORI KOHLER, Physician and Surgeon
and KATHLEEN TONTI-HORNE,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     Vince Chhabria, District Judge, Presiding

                            Submitted March 14, 2018**
                             San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,*** District Judge.




      *
             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).
      ***
             The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
      Gregory Williams appeals the district court’s order granting summary

judgment for Dr. Lori Kohler in his action under 42 U.S.C. § 1983 alleging that

Kohler violated his Eighth Amendment rights. We have jurisdiction under 28

U.S.C. § 1291.

      Williams failed to raise a genuine issue of material fact that Kohler was

deliberately indifferent to Williams’s serious medical needs. There is no evidence

in the record that Kohler “purposefully ignore[d] or fail[ed] to respond to”

Williams’s condition. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992),

overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.

1997) (en banc). Even if Kohler “was convinced that her diagnosis was correct”

and negligently failed to pursue other diagnostic avenues, there is no evidence that

she “was subjectively aware that her failure to conduct a differential diagnosis

created a ‘substantial risk of serious harm’” to Williams. Toguchi v. Chung, 391

F.3d 1051, 1060 (9th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). Although Williams offered the report of Dr. Philip Grant, which opined

that Kohler “should have inferred that Mr. Williams had a serious medical need

and that a substantial risk of serious harm existed,” a “failure to alleviate a

significant risk that [Kohler] should have perceived but did not, while no cause for




                                            2
commendation, cannot under our cases be condemned as the infliction of

punishment.” Farmer, 511 U.S. at 838.1

      AFFIRMED.




      1
         Williams argued in his complaint that Kohler “knew that Plaintiff was at
risk for disseminated Cocci,” but failed to identify and treat these symptoms.
However, Williams “does not specifically and distinctly argue the issue” on appeal,
and therefore it is waived. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005). Even if it were not waived, the argument is meritless because no evidence
in the record supports an inference that Kohler knew Williams was at risk for
Cocci or any other infection. Cf. Lolli v. Cty. of Orange, 351 F.3d 410, 420–21
(9th Cir. 2003)
                                         3
