Gregory Andre Smith v. K. Kumar; L. Gamboa, M.d.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ANDRE SMITH,
Plaintiff-Appellant,
v.
K. KUMAR; L. GAMBOA, M.D.,
Defendants-Appellees.
No. 17-16444
D.C. No. 5:15-cv-05720-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Gregory Andre Smith, a California state prisoner, 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. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
* 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
APR 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-16444
Cir. 2004). We affirm.
The district court properly granted summary judgment because Smith failed
to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent to his chronic foot pain. See id. 1057-60 (a prison official
is deliberately indifferent only if he or she knows of and disregards an excessive
risk to inmate health; a difference of opinion concerning the course of treatment,
medical malpractice, and negligence in diagnosing or treating a medical condition
do not amount to deliberate indifference); Jett v. Penner, 439 F.3d 1091, 1098 (9th
Cir. 2006) (delays must result in substantial harm to constitute deliberate
indifference).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as unsupported by the record Smith’s contention that the district
court failed to consider the entire record.
Smith’s request for costs, set forth in his opening brief, is denied.
AFFIRMED.

-- 2 of 2 --