Robert Ray Ferguson v. DAVID AGLER, Dr.; MURRAY YOUNG, Dr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT RAY FERGUSON,
Plaintiff-Appellant,
v.
DAVID AGLER, Dr.; MURRAY YOUNG,
Dr.,
Defendants-Appellees.
No. 16-35890
D.C. No. 1:15-cv-00073-EJL-CWD
MEMORANDUM*
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).
FILED
JUL 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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