                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 03 2016

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



                             FOR THE NINTH CIRCUIT


ROBERT MACHLAN,                                  No. 15-15700

               Plaintiff - Appellant,            D.C. No. 3:13-cv-00337-MMD-
                                                 VPC
 v.

DWIGHT NEVEN, Warden; et al.,                    MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Nevada state prisoner Robert Machlan appeals pro se from the district

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

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s ruling on cross-motions for summary judgment, Guatay Christian

          *
             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).
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 defendants on

Machlan’s due process claim regarding his time in disciplinary and administrative

segregation because Machlan failed to raise a genuine dispute of material fact as to

whether his segregation implicated a protected liberty interest. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995) (holding that a constitutionally protected

liberty interest arises only when a restraint imposes an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life”).

Machlan’s contention that he did not receive appropriate “time cuts” for his

disciplinary segregation sentence is unsupported by the record.

      The district court properly granted summary judgment for defendants on

Machlan’s deliberate indifference claim because Machlan failed to raise a genuine

dispute of material fact as to whether defendants were deliberately indifferent to a

serious medical need as a result of his housing placement and the use of restraints.

See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (a claim for deliberate

indifference requires showing (1) a serious medical need, which exists if a failure

to treat a prisoner’s condition could result in further significant injury or the

unnecessary and wanton infliction of pain, and (2) a purposeful act or failure to


                                            2                                       15-15700
respond to an inmate’s pain or serious medical need and harm caused by the

indifference).

      The district court properly granted summary judgment for defendants on

Machlan’s Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims

because Machlan failed to raise a genuine dispute of material fact as to whether

defendants discriminated against him or denied him a benefit because of a

disability. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir.

2007) (elements of claims under Title II of the ADA and the Rehabilitation Act).

      Machlan’s contention that the district court ruled against him because he

failed to object to the magistrate judge’s report and recommendation is without

merit because the district court reviewed the record de novo.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Machlan’s request for the appointment of counsel, set forth in his reply brief,

is denied.

      AFFIRMED.




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