Michael Johnson v. D. Sisto

FILED
NOT FOR PUBLICATION JUL 15 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MICHAEL JOHNSON, No. 10-15559

Plaintiff - Appellant, D.C. No. 2:06-cv-02035-FCD-
KJN
v.

D. K. SISTO; et al., MEMORANDUM *

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding

Submitted July 12, 2011 **

Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

Michael Johnson, 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 medical needs. We have jurisdiction under 28 U.S.C. § 1291.

*
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).
We review for an abuse of discretion a district court’s denial of appointment of

counsel, Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), and we affirm.

The district court did not abuse its discretion by denying Johnson’s motions

to appoint counsel because the case did not present exceptional circumstances. See

Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (holding that

“[a] finding of the exceptional circumstances of the plaintiff seeking assistance

requires at least an evaluation of the likelihood of the plaintiff’s success on the

merits and an evaluation of the plaintiff’s ability to articulate his claims in light of

the complexity of the legal issues involved” (citation and internal quotation marks

omitted)).

We do not consider claims not actually argued in Johnson’s opening brief.

See Entm’t Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211,

1217 (9th Cir. 1997).

AFFIRMED.

2 10-15559