                                                                           FILED
                            NOT FOR PUBLICATION                              DEC 5 2014

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



                             FOR THE NINTH CIRCUIT


ELONZA JESSE TYLER,                              No. 13-17033

               Plaintiff - Appellant,            D.C. No. 1:04-cv-06638-LJO-
                                                 BAM
  v.

DENNIS C. SMITH; NANCY N. ERLY,                  MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Elonza Jesse Tyler, 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 cross motions for summary judgment,

          *
             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).
Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir.

2011), and we affirm.

      The district court properly granted summary judgment for defendant because

Tyler failed to raise a genuine dispute of material fact as to whether defendant was

deliberately indifferent to Tyler’s knee injury. See Jett v. Penner, 439 F.3d 1091,

1096 (9th Cir. 2006) (deliberate indifference requires “a purposeful act or failure to

respond to a prisoner’s pain or possible medical need” and “harm caused by the

indifference”); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004)

(difference of opinion concerning the appropriate course of treatment does not

amount to deliberate indifference).

      Tyler’s second motion for appointment of counsel, filed on December 26,

2013, is denied.

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

appeal, or 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) (per curiam).

      AFFIRMED.




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