Michael Aaron Witkin v. MARIANA LOTERSZTAIN, Primary Care Physician;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL AARON WITKIN,
Plaintiff-Appellant,
v.
MARIANA LOTERSZTAIN, Primary Care
Physician; et al.,
Defendants-Appellees.
No. 18-16040
D.C. No. 2:15-cv-00638-MCE-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted May 23, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Michael Aaron Witkin, 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
MAY 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cir. 2004). We affirm.
The district court properly granted summary judgment on Witkin’s
deliberate indifference claim because Witkin failed to raise a genuine dispute of
material fact as to whether defendants were deliberately indifferent to Witkin’s
medical condition. See id. 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); see also Wilhelm v.
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (deliberate indifference requires
showing a purposeful act or failure to respond to a prisoner’s pain or possible
medical need and harm caused by the indifference). The record does not contain
any evidence that “the chosen course of treatment [for Witkin] was medically
unacceptable under the circumstances and was chosen in conscious disregard of an
excessive risk to his health.” Toguchi, 391 F.3 at 1-57-58. The record is equally
devoid of evidence indicating that any defendant intentionally ignored, or failed to
respond to, Witkin’s medical needs.
The district court did not abuse its discretion by denying Witkin’s requests
for additional discovery after the deadline because Witkin failed to demonstrate
how the denial resulted in actual and substantial prejudice. See Laub v. U.S. Dep’t
of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“A district court is vested with

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broad discretion to permit or deny discovery, and a decision to deny discovery will
not be disturbed except upon the clearest showing that the denial of discovery
results in actual and substantial prejudice to the complaining litigant. Prejudice is
established if there is a reasonable probability that the outcome would have been
different had discovery been allowed.” (citations and internal quotation marks
omitted)).
The district court did not abuse its discretion by denying Witkin’s motion for
leave to amend his complaint after the close of discovery because granting leave to
amend would have caused undue delay and prejudice to defendants. See Jackson
v. Bank of Haw., 902 F.2d 1385, 1387-88 (9th Cir. 1990) (setting forth standard of
review and relevant factors for determining whether to grant leave to amend).
The district court did not abuse its discretion in considering the expert
declaration of Dr. Barnett submitted by defendants in support of their summary
judgment motion. See Primiano v. Cook, 598 F.3d 558, 563, 566-67 (9th Cir.
2010) (setting forth standard of review and requirements for admitting expert
testimony).
Because we conclude that the district court properly granted summary
judgment for defendants, we reject Witkin’s contention that the district court erred
by denying summary judgment in his favor.
We do not consider arguments raised for the first time on appeal, or matters

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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).
AFFIRMED.

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