                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOEL DAVID KAUFMAN,                             No. 18-15207

                Plaintiff-Appellant,            D.C. No. 3:15-cv-02777-JD

 v.
                                                MEMORANDUM*
M. ELIOT SPEARMAN, Warden; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                          Submitted February 19, 2019**

Before:      FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

      California state prisoner Joel David Kaufman 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 Kaufman

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

deliberately indifferent in the treatment of Kaufman’s food allergy-related

concerns and psoriasis. 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); see also Starr v.

Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for establishing

supervisory liability).

      The district court did not abuse its discretion by granting defendants’ motion

to stay discovery pending a ruling on qualified immunity because Kaufman failed

to demonstrate actual and substantial prejudice resulting from the denial of

discovery. See Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir.

2004) (standard of review); Sablan v. Dep’t of Fin., 856 F.2d 1317, 1321 (9th Cir.

1988) (district court’s “decision to deny discovery will not be disturbed except

upon the clearest showing that denial of discovery results in actual and substantial

prejudice to the complaining litigant” (citation and internal quotation marks

omitted)).

      The district court did not abuse its discretion by granting an extension of


                                          2                                     18-15207
time for defendants to respond to Kaufman’s second motion for default judgment

and denying Kaufman’s motion for damages because defendants established

excusable neglect for the missed filing deadline. See Ahanchian v. Xenon Pictures,

Inc., 624 F.3d 1253, 1258, 1261 (9th Cir. 2010) (setting forth standard of review

and four-part balancing test to determine whether a party’s failure to meet a

deadline constitutes excusable neglect).

      The district court did not abuse its discretion by denying Kaufman’s second

motion for default judgment because Kaufman failed to establish that the alleged

discovery violations warranted such a sanction. See Dreith v. Nu Image, Inc., 648

F.3d 779, 786, 788 (9th Cir. 2011) (setting forth standard of review and factors to

consider before declaring a default; this court reviews the record independently if

the district court fails to make explicit findings regarding each of the factors).

      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 documents and facts not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

      AFFIRMED.




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