FILED
NOT FOR PUBLICATION DEC 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE' BOSTON, No. 13-17140
Plaintiff - Appellant, D.C. No. 2:10-cv-01782-KJM-
DAD
v.
V. GARCIA; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
California state prisoner Andre' Boston appeals pro se from the district
court’s 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. 2004) (summary
*
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).
judgment); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.
The district court properly granted summary judgment on Boston’s claims
against Garcia, Alkire, and Renauld because Boston failed to raise a genuine
dispute of material fact as to whether these defendants were deliberately indifferent
to his lung disease by not transferring him to a lower altitude prison. See Toguchi,
391 F.3d at 1057-60 (deliberate indifference is a high legal standard, and is met
only if the prison official knows of and disregards an excessive risk to the
prisoner’s health; negligence and a mere difference in medical opinion are
insufficient).
The district court properly dismissed Boston’s claims against the remaining
defendants because Boston failed to allege facts showing that these defendants
knew of and disregarded an excessive risk of harm to his health. See id.
The district court did not abuse its discretion in denying Boston’s motions to
appoint counsel because Boston did not establish 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 in granting defendants’ motion
to extend discovery and withdraw admissions or in denying Boston’s motion to
2 13-17140
find defendants’ responses insufficient. See Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607, 609 (9th Cir. 1992) (standard of review and requirements
to modify a scheduling order under Fed. R. Civ. P. 16(b)(4)); Asea, Inc. v. S. Pac.
Transp. Co., 669 F.2d 1242, 1247-48 (9th Cir. 1981) (standard of review of order
regarding withdrawal of admissions under Fed. R. Civ. P. 36(b) and of order
regarding sufficiency of discovery responses under Fed. R. Civ. P. 36(a)).
Defendants’ request for judicial notice, filed on May 5, 2014, is denied as
unnecessary.
AFFIRMED.
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