                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KELVIN ALLEN,                                   No. 17-15568

                Plaintiff-Appellant,            D.C. No. 3:14-cv-04109-JST

 v.
                                                MEMORANDUM*
E. BIRDSONG, M.D.; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                           Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Kelvin Allen, a California state prisoner, 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), and we affirm.

      The district court properly granted summary judgment because Allen failed

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

deliberately indifferent in treating Allen’s back problems. See id. at 1057-60 (a

prison official acts with deliberate indifference only if he or she knows of and

disregards an excessive risk to the prisoner’s health; a mere difference in medical

opinion, or even medical negligence, is insufficient to establish deliberate

indifference); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (“Supervisory

liability exists . . . if supervisory officials implement a policy so deficient that the

policy itself is a repudiation of constitutional rights and is the moving force of the

constitutional violation.” (citation and internal quotation marks omitted)).

      The district court did not abuse its discretion in denying Allen’s motion to

appoint counsel because Allen did not demonstrate exceptional circumstances. See

Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting forth standard of

review and requirements for appointment of counsel).

      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).

      We do not consider matters not properly presented to the district court. See

Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)

(explaining that where “the complaint does not include the necessary factual


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allegations to state a claim, raising such claim in a summary judgment motion is

insufficient to present the claim to the district court”).

      AFFIRMED.




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