NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL DOUGLAS WILKINS, No. 17-35657
Plaintiff-Appellant, D.C. No. 6:16-cv-00319-SB
v.
MEMORANDUM*
COLETTE PETERS, Director, Oregon
Dept. Of Corrections; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Earl Douglas Wilkins, an Oregon state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
retaliation, deliberate indifference to his serious medical needs, and due process
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (exhaustion); Ford v.
City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013) (cross-motions for summary
judgment). We affirm.
The district court properly granted summary judgment on Wilkins’s
retaliation claims because Wilkins did not exhaust his administrative remedies, and
failed to raise a genuine dispute of material fact as to whether administrative
remedies were effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850,
1858-60 (2016) (setting forth circumstances when administrative remedies are
unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (a prisoner must exhaust
administrative remedies, “which means using all steps that the agency holds out,
and doing so properly (so that the agency addresses the issues on the merits)”
(citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Wilkins’s
deliberate indifference claim because Wilkins failed to raise a genuine dispute of
material fact as to whether defendants were deliberately indifferent to his ankle
injury. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (deliberate
indifference is a high legal standard; neither medical malpractice nor negligence
amounts to deliberate indifference).
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The district court properly granted summary judgment on Wilkins’s due
process claims arising from defendant Nofziger’s decision not to call a witness at
Wilkins’s disciplinary and sanctions hearings because Wilkins failed to raise a
genuine dispute of material fact as to whether that witness would have provided
any relevant, non-cumulative evidence. See Wolff v. McDonnell, 418 U.S. 539,
566 (1974) (“Prison officials must have the necessary discretion . . . to refuse to
call witnesses [for reasons such as] irrelevance [or] lack of necessity . . . .”).
Because defendants afforded Wilkins a disciplinary hearing as well as
administrative review, Wilkins received all the process he was due. See id. at 564-
67 (prison officials must provide advance written notice of the claimed violation; a
written statement as to the evidence relied upon and the reasons for the disciplinary
action taken; and a limited right for inmates to call witnesses and present
documentary evidence in their defense); see also Superintendent v. Hill, 472 U.S.
445, 455 (1985) (“[T]he requirements of due process are satisfied if some evidence
supports the decision by the prison disciplinary board . . . .”).
The district court did not abuse its discretion in denying Wilkins’s motion to
appoint counsel because Wilkins failed to demonstrate exceptional circumstances.
See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of
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review and exceptional circumstances requirement for appointment of counsel).
The district court did not abuse its discretion in denying Wilkins’s motion to
appoint an expert because the deliberate indifference claim was not so complex as
to require an independent expert. See Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard of
review).
We reject as unsupported by the record Wilkins’s contentions that the
district court did not liberally construe his pro se pleadings, and that the district
court applied the wrong standard of review in reviewing the magistrate judge’s
findings and recommendations.
AFFIRMED.
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