NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT LEE SWAFFORD, AKA Swafford Lee, No. 22-16498

Plaintiff-Appellant, D.C. No. 2:19-cv-00721-DAD-AC v.

MEMORANDUM* JASON ROHRER,

Defendant-Appellee, and R. NEUSHMID, Warden; T. WAMBLE; OLLER, R.N.; BUCKER, C.O.; JOHNSON,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted July 18, 2023** Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

California state prisoner Lee Swafford appeals pro se from the district

*

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). 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. Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). We affirm.

The district court properly granted summary judgment because Swafford failed to raise a genuine dispute of material fact as to whether Rohrer was deliberately indifferent to Swafford’s serious medical needs by denying Swafford’s requests for a lower bunk accommodation. See Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (holding deliberate indifference is a “high legal standard” requiring a defendant be aware of and disregard an excessive risk to an inmate’s health; medical malpractice, negligence, or a difference of opinion concerning the course of treatment does not amount to 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 treat Swafford’s motion (Docket Entry No. 22) as a motion to file a supplemental brief and grant the motion. The Clerk will file the brief submitted at Docket Entry No. 16.

AFFIRMED.

2 22-16498