Flavio Moreno v. Nevada Department of Corrections; Romeo Aranas; Kim Adamson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLAVIO MORENO,
Plaintiff-Appellant,
v.
NEVADA DEPARTMENT OF
CORRECTIONS; ROMEO ARANAS; KIM
ADAMSON,
Defendants-Appellees.
No. 20-16933
D.C. No. 3:18-cv-00137-MMD-CLB
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Nevada state prisoner Flavio Moreno 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 and retaliation. We have jurisdiction under 28 U.S.C.
* 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 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 20-16933
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on Moreno’s
deliberate indifference claims because Moreno failed to raise a genuine dispute of
material fact as to whether defendants were deliberately indifferent to his spine
injury. See id. at 1057-60 (a prison official is deliberately indifferent only if he or
she knows of and disregards an excessive risk to the prisoner’s 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 Moreno’s
retaliation claim because Moreno failed to raise a genuine dispute of material fact
as to whether defendants acted with a retaliatory motive or whether there was an
absence of legitimate correctional goals for defendants’ conduct. See Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a First
Amendment retaliation claim in the prison context); see also Wood v. Yordy, 753
F.3d 899, 905 (9th Cir. 2014) (explaining that “mere speculation that defendants
acted out of retaliation is not sufficient” and that specific evidence of a causal
connection between the protected conduct and adverse action is required).
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

-- 2 of 3 --

3 20-16933
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider claims that Moreno failed to allege in his complaint. See Pickern v. Pier
1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006) (affirming summary
judgment where the complaint did not give fair notice of the factual basis for a
claim raised for the first time in opposition to summary judgment).
AFFIRMED.

-- 3 of 3 --