NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY DAVID AGUILAR, 

Plaintiff-Appellant, 

 v. 

DARRYL BATES, M.D.; et al., 

Defendants-Appellees.

No. 19-55179 

D.C. No. 3:15-cv-02446-MMAAGS 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

California state prisoner Jerry David Aguilar 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 Cir. 

* 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 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-55179 

2004). We affirm.

The district court properly granted summary judgment because Aguilar 

failed to raise a genuine dispute of material fact as to whether defendants were 

deliberately indifferent to Aguilar’s broken ankle and need for surgery. 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); Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002)

(delays in medical treatment do not constitute an Eighth Amendment violation 

unless the defendants know that “delays would cause significant harm”).

The district court did not abuse its discretion by denying Aguilar’s motion 

for appointment of counsel because Aguilar failed to demonstrate exceptional 

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting 

forth standard of review and “exceptional circumstances” requirement for 

appointment of counsel).

The district court did not abuse its discretion by denying Aguilar’s request 

for appointment of an expert under Federal Rule of Evidence 706 because such an 

appointment was not necessary for the court to make its determination. See 

Armstrong v. Brown, 768 F.3d 975, 987 (9th Cir. 2014) (“A Rule 706 expert 

typically acts as an advisor to the court on complex scientific, medical, or technical 
3 19-55179 

matters.”); Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 

1071 (9th Cir. 1999) (setting forth standard of review).

We do not consider Aguilar’s arguments regarding the district court’s order 

denying Aguilar’s post-judgment motions to reconsider, amend or alter the 

judgment because Aguilar failed to file a new or amended notice of appeal after the 

district court denied his post-judgment motions. See Fed. R. App. P. 4(a)(4)(B)(ii); 

Harris v. Mangum, 863 F.3d 1133, 1138 n.1 (9th Cir. 2017).

We do not consider matters 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.