                                                                           FILED
                            NOT FOR PUBLICATION                             APR 14 2014

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



                             FOR THE NINTH CIRCUIT


MICHAEL ALLEN LEBOVITZ,                          No. 12-17821

               Plaintiff - Appellant,            D.C. No. 4:11-cv-00369-JGZ

  v.
                                                 MEMORANDUM*
REBECCA KENYON, Supervisory
Registered Nurse, Tucson Complex,
Wincester Unit,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                              Submitted April 7, 2014**

Before:        TASHIMA, GRABER, and IKUTA, Circuit Judges.

       Arizona state prisoner Michael Allen Lebovitz 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 and retaliation. We have

          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on Lebovitz’s Eighth

Amendment claims because Lebovitz failed to raise a genuine dispute of material

fact as to whether defendant was deliberately indifferent in her treatment of his

various medical conditions. See id. at 1057-58, 1060 (deliberate indifference is a

high legal standard, and is met only if the defendant knows of and disregards an

excessive risk to the prisoner’s health; negligence and a mere difference in medical

opinion are insufficient); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

2011) (requirements for establishing supervisory liability); Nelson v. Pima Cmty.

Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation

do not create a factual dispute for purposes of summary judgment.”).

      The district court properly granted summary judgment on Lebovitz’s

retaliation claim because Lebovitz failed to raise a genuine dispute of material fact

as to whether defendant took an adverse action against him because Lebovitz filed

grievances. See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (setting

forth the elements of a retaliation claim in the prison context and stating that “a

plaintiff must show that his protected conduct was the ‘substantial’ or ‘motivating’

factor behind the defendant’s conduct” (citation omitted)).


                                           2                                     12-17821
       The district court did not abuse its discretion by denying Lebovitz’s motion

to appoint counsel because Lebovitz failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

       Kenyon’s motion to strike portions of Lebovitz’s reply brief, filed on

October 17, 2013, is denied as moot because we do not consider arguments raised

for the first time in the reply brief, or allegations raised for the first time on appeal.

See Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1020 n.2 (9th Cir.

2014) (denying motion to strike as moot).

       AFFIRMED.




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