FILED
NOT FOR PUBLICATION DEC 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY ALLEN, No. 13-17215
Plaintiff - Appellant, D.C. No. 2:10-cv-03032-GEB-
JFM
v.
JAMES WALKER, Warden; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
California state prisoner Troy Allen appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging that defendants were
deliberately indifferent to his health and safety in connection with his exposure to
excessive heat in a transport van. 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 de novo, Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996), and we
affirm.
The district court properly granted summary judgment because Allen failed
to raise a genuine dispute of material fact as to whether defendants consciously
disregarded a serious risk to Allen’s health or safety. See Farmer v. Brennan, 511
U.S. 825, 845, 847 (1994) (a prison official acts with deliberate indifference if she
or “he knows that inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it”); Keenan, 83 F.3d at
1091 (Eighth Amendment “guarantees adequate heating” but does not require a
“comfortable” temperature); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986) (party opposing summary judgment may not rest on conclusory
assertions, but must come forward with significant probative evidence).
The district court did not abuse its discretion in denying Allen’s motion for
appointment of counsel because Allen failed to demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and explaining “exceptional circumstances” requirement).
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) (per curiam).
AFFIRMED.
2 13-17215