                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ROBERT RAY FERGUSON,                            No.    16-35890

                Plaintiff-Appellant,            D.C. No. 1:15-cv-00073-EJL-CWD

 v.
                                                MEMORANDUM*
DAVID AGLER, Dr.; MURRAY YOUNG,
Dr.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                             Submitted July 10, 2018**

Before:      CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

      Idaho state prisoner Robert Ray Ferguson appeals pro se from the district

court’s summary judgment on his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs and his state-law claim alleging

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

      *
             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).
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on Ferguson’s

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

material fact as to whether defendants were deliberately indifferent in their

treatment of his medical conditions, including his hip pain. See id. at 1057-58 (a

prison official acts with deliberate indifference only if she or he knows of and

disregards an excessive risk to the prisoner’s health; a mere difference in medical

opinion or negligence is insufficient to establish deliberate indifference).

      The district court properly granted summary judgment on Ferguson’s

negligence claim because Ferguson failed to introduce competent expert testimony

showing that defendants “negligently failed to meet the applicable standard of

health care practice.” Ballard v. Kerr, 378 P.3d 464, 476 (Idaho 2016) (citing

Idaho Code §§ 6-1012, 6-1013); see also Easterling v. Kendall, 367 P.3d 1214,

1226 (Idaho 2016) (setting forth elements of medical malpractice claim under

Idaho law and stating that “the applicable standard of care and breach of that

standard [must] be proved by expert testimony”).

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

in the opening brief, or arguments raised for the first time on appeal, including

                                           2                                     16-35890
Ferguson’s contention that the district court abused its discretion by striking

exhibits attached to the complaint. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009).

      We reject as unsupported by the record Ferguson’s contentions regarding the

discovery schedule and the district court’s alleged failure to consider his evidence.

      Ferguson’s renewed motion for appointment of counsel (Docket Entry

No. 38) is denied.

      AFFIRMED.




                                          3                                       16-35890
