FILED
NOT FOR PUBLICATION
JUN 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO ANTONIO MARROQUIN, No. 13-15580
Plaintiff - Appellant, D.C. No. 4:09-cv-03841-SBA
v.
MEMORANDUM*
T. GRADY, Correctional Officer and J.
RECIO, Correctional Officer,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted June 15, 2016
San Francisco, California
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Armando Marroquin appeals the district court’s entry of summary judgment
in his 42 U.S.C. § 1983 action against Correctional Officers Grady and Recio and
the dismissal of his § 1983 claims against Officer Montano and Warden Evans.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in granting summary judgment against
Marroquin on his claims that Correctional Officers Grady and Recio violated the
Eighth Amendment through deliberate indifference to Marroquin’s safety. Even
taking into account Marroquin’s October 2011 affidavit, Marroquin’s conditioning
his transfer request on the availability of a lower bunk undermined the urgency of
his situation such that no reasonable jury could have concluded that Officer Recio
was “aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Similarly,
in the absence of any visible emergency situation in Marroquin’s cell, Marroquin’s
message to Officer Grady referencing an emergency was insufficient to alert Grady
that there was a serious risk to Marroquin’s safety, particularly given testimony
that prisoners frequently claimed that non-urgent situations were emergencies. No
reasonable jury could have concluded that either officer actually drew the inference
that Marroquin faced a substantial risk of serious harm. Id.
The district court did not err in dismissing Marroquin’s claim that
defendants Montano and Evans violated his Eighth Amendment rights through
deliberate indifference to his safety. Based on Marroquin’s allegations, Officer
Montano was merely present in the cell block on the day Marroquin was assaulted,
which is insufficient to “state a claim to relief that is plausible on its face.” Chavez
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v. United States, 683 F.3d 1102, 1108–09 (9th Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). Likewise, Marroquin failed to allege that
Warden Evans either was personally involved in the alleged deprivation of
Marroquin’s rights or implemented a policy that was the “moving force” behind
the constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
2011); Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995).
The district court did not err in granting summary judgment against
Marroquin on his claims that defendants Recio and Grady violated his Eighth
Amendment rights through deliberate indifference to medical needs. No
reasonable jury could have concluded that the officers’ conduct proximately caused
Marroquin to be denied medical care, because Marroquin had access to medical
personnel for nearly two weeks before he was placed on “C” status and was able to
submit a medical request form during the period that he claims he was denied such
access. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.
2013). The district court likewise did not err in dismissing Marroquin’s medical
needs claims against defendants Montano and Evans because Marroquin did not
allege that he was denied access to medical care prior to being placed on “C”
status.
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The district court did not abuse its discretion in denying Marroquin’s motion
to vacate the judgment under Federal Rule of Civil Procedure 59(e). Marroquin
failed to identify new evidence that he could not have discovered earlier in the
litigation and the district court did not plainly err. See Zimmerman v. City of
Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
The district court did not abuse its discretion in denying Marroquin’s four
motions to appoint counsel. The district court offered a reasoned explanation for
each denial that was not illogical, implausible, or without support in the record.
See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); see also United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). Even if the district court
erred by failing to address the likelihood of success of Marroquin’s claims, see
Palmer, 560 F.3d at 970, any such error was harmless in light of Marroquin’s low
probability of success.
Because we affirm the district court’s judgment against Marroquin in its
entirety, we deny Marroquin’s motion to remand this case to a different judge as
moot. See United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780 (9th Cir.
1986).
AFFIRMED.
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