                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DANA McMASTER,                                   No. 12-16239

               Plaintiff - Appellant,            D.C. No. 1:04-cv-06453-FRZ

  v.
                                                 MEMORANDUM *
K. NICHOLES; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     Frank R. Zapata, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       California state prisoner Dana McMaster appeals pro se from the district

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

law claims related to the treatment of an injury to his ankle and lower leg. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung,

          *
             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).
391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment on McMaster’s

deliberate indifference claim because McMaster failed to raise a genuine dispute of

material fact as to whether defendants consciously disregarded a serious risk to his

health arising from an injury to his left ankle and lower leg. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (setting forth elements of a claim for deliberate

indifference); Toguchi, 391 F.3d at 1059-60 (neither negligence nor inmate’s

difference of opinion with physician is sufficient for deliberate indifference claim).

      The district court properly granted summary judgment on McMaster’s claim

under California Government Code § 845.6 because McMaster failed to raise a

triable dispute as to whether defendants failed to take reasonable action to summon

any necessary immediate medical care for McMaster. See Jett v. Penner, 439 F.3d

1091, 1099 (9th Cir. 2006) (setting forth elements of claim under § 845.6).

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

to alter or amend judgment based on newly discovered evidence because McMaster

failed to establish that the evidence was of such a magnitude as to change the

outcome of the case had the court known of it earlier. See Dixon v. Wallowa

County, 336 F.3d 1013, 1022 (9th Cir. 2003) (setting forth standard of review and

grounds to warrant reconsideration based on newly discovered evidence).


                                           2                                     12-16239
      The district court did not abuse its discretion in denying McMaster’s

motions for appointment of counsel because, notwithstanding his mental

impairments, McMaster failed to demonstrate exceptional circumstances. See

Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (setting forth standard

of review and grounds warranting appointment of counsel).

      McMaster’s contentions regarding the district court’s alleged failure to

consider evidence or error in making disputed findings of fact are unpersuasive.

      AFFIRMED.




                                         3                                       12-16239
