Orlando Blackwell v. D. Dosuella;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO BLACKWELL,
Plaintiff-Appellant,
v.
D. DOSUELLA; et al.,
Defendants-Appellees.
No. 15-16630
D.C. No. 2:13-cv-02036-TLN-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
California state prisoner Orlando Blackwell appeals pro se from the district
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 for failure to state a claim under Federal
* 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).
FILED
AUG 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 15-16630
Rule of Civil Procedure 12(b)(6). Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir.
2011). We affirm.
The district court properly dismissed Blackwell’s action because Blackwell
failed to allege facts sufficient to show that defendants were deliberately
indifferent to his ruptured Achilles tendon. See Toguchi v. Chung, 391 F.3d 1051,
1057 (9th Cir. 2004) (prison officials are deliberately indifferent only if they know
of and disregard an excessive risk to inmate health; neither a difference of opinion
concerning the course of treatment nor mere negligence in diagnosing or treating a
medical condition amounts to deliberate indifference); see also 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 a complaint states a claim for relief, a
court may consider facts contained in documents attached to the complaint).
We do not consider facts or documents not presented to the district court.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts
not presented to the district court are not part of the record on appeal.”). Further,
we do not consider issues or arguments not specifically and distinctly raised and
argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th
Cir. 2009) (per curiam).

-- 2 of 3 --

3 15-16630
We reject as without merit Blackwell’s contentions that the district court’s
application of Rule 12(b)(6) violated his First Amendment or Fourteenth
Amendment rights.
We treat Blackwell’s motion to file an oversized reply brief (Docket Entry
No. 20) as a motion to file an oversized and supplemental reply brief, and grant the
motion. The Clerk shall file the supplemental reply brief at Docket Entry No. 19.
AFFIRMED.

-- 3 of 3 --