                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DESHAN WATSON,                                  No. 19-35171

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05968-BHS

 v.
                                                MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                             Submitted July 14, 2020**

Before:      CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

      Washington state prisoner Deshan Watson 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, violations of Title II of the Americans

with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973


      *
             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).
(“RA”), and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We may

affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008). We affirm.

      The district court properly granted summary judgment on Watson’s

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

material fact as to whether defendants were deliberately indifferent to Watson’s

medical need for a gluten-free diet. See Toguchi, 391 F.3d. at 1057-60 (a prison

official is deliberately indifferent only if he or she knows of and disregards an

excessive risk to inmate health; medical malpractice, negligence, or a difference of

opinion concerning the course of treatment does not amount to deliberate

indifference).

      The district court properly granted summary judgment on Watson’s ADA

and RA claims for monetary relief because Watson failed to raise a genuine dispute

of material fact as to whether defendants intentionally discriminated against him.

See Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001), as

amended on denial of reh’g (Oct. 11, 2001) (in order to recover monetary damages

under the ADA and the RA, a plaintiff must show intentional discrimination; the

test for intentional discrimination is deliberate indifference). Although the district

court did not directly address Watson’s request for injunctive relief, denial of


                                           2                                    19-35171
injunctive relief was proper because Watson had obtained the relief he sought: a

gluten-free diet. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864-65

(9th Cir. 2017) (explaining the mootness doctrine).

      The district court properly granted summary judgment on Watson’s medical

negligence claims because Watson failed to raise a genuine dispute of material fact

as to whether defendants breached a duty of care owed to him. See Seybold v. Neu,

19 P.3d 1068, 1073-74 (Wash. Ct. App. 2001) (setting forth the standard of review

and elements of a medical negligence claim under Washington law).

      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).

      Watson’s request to strike defendants’ argument that he did not establish

medical malpractice as set forth in his opening brief is denied.

      AFFIRMED.




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