                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 27 2016

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



                              FOR THE NINTH CIRCUIT


JOEL P. WHITNEY,                                 No. 13-15579

                Plaintiff - Appellant,           D.C. No. 1:10-cv-01963-DLB

 v.
                                                 MEMORANDUM*
J. WALKER, Chief, California Prison
Health Care Services; et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                        for the Eastern District of California
                    Dennis L. Beck, Magistrate Judge, Presiding**

                             Submitted January 20, 2016***

Before:         CANBY, TASHIMA, and NGUYEN, Circuit Judges.

       California state prisoner Joel P. Whitney appeals pro se from the district


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s judgment dismissing 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 a dismissal under Fed. R. Civ. P. 12(b)(6). Doe v.

Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

      The district court properly dismissed Whitney’s action because Whitney

failed to allege facts sufficient to show that any defendant was aware of and

disregarded an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051,

1058 (9th Cir. 2004) (to be deliberately indifferent, treatment must be medically

unacceptable under the circumstances and chosen in conscious disregard of an

excessive risk to a prisoner’s health); Nat’l Ass’n for the Advancement of

Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in

determining whether the complaint states a claim for relief, “we may consider facts

contained in documents attached to the complaint”).

      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) (per curiam).

      Whitney’s request for appointment of counsel on appeal, set forth in his

opening brief, is denied.

      AFFIRMED.


                                           2                                      13-15579
