NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 21 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
EDWARDO DESANTIAGO, No. 11-56684
Plaintiff - Appellant, D.C. No. 3:08-cv-01882-BTM-
WMC
v.
OH, MD; L. MARQUEZ, RN, MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
California state prisoner Edwardo Desantiago appeals pro se from the
district court’s judgment dismissing 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 summary judgment, Toguchi v. Chung, 391 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1051, 1056 (9th Cir. 2004), and for an abuse of discretion a dismissal for failure to
complete service in a timely manner, Oyama v. Sheehan (In re Sheehan), 253 F.3d
507, 511 (9th Cir. 2001) (dismissal under Fed. R. Civ. P. 4(m)). We affirm.
The district court properly granted summary judgment for defendant
Marquez because Desantiago failed to raise a genuine dispute of material fact as to
whether Marquez acted with deliberate indifference to a serious medical need in
her treatment of Desantiago’s excess ear wax. See Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006) (setting forth test for “deliberate indifference to a serious
medical need” under the Eighth Amendment).
To the extent that Desantiago challenges the denial of his motion for
appointment of a medical expert for a physical examination, the district court did
not abuse its discretion because Desantiago failed to show that appointment of a
medical expert was necessary. See Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard of
review and noting that district court has discretion whether to appoint an expert
under Fed. R. Evid. 706(a)).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Desantiago’s medical negligence claim against
defendant Marquez. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7,
2 11-56684
(1988) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.”); Tritchler v. County of
Lake, 358 F.3d 1150, 1153 (9th Cir. 2004) (reviewing for an abuse of discretion).
The district court did not abuse its discretion by dismissing Desantiago’s
claims against defendant Oh for failure to effect timely service under Federal Rule
of Civil Procedure 4(m) because Desantiago failed to show good cause as to why
he did not provide the U.S. Marshals Service with sufficient information to serve
Oh for over one year, despite having been warned of his duty to do so. See Fed. R.
Civ. P. 4(m) (requiring service within 120 days of filing the complaint); In re
Sheehan, 253 F.3d 512-13 (explaining the good cause standard and the district
court’s broad discretion to extend time for service or dismiss without prejudice);
Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (an incarcerated pro se
plaintiff proceeding in forma pauperis must provide the marshal with sufficient
information necessary for service), abrogated in part on other grounds by Sandin
v. Conner, 515 U.S. 472 (1995).
AFFIRMED.
3 11-56684