NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON VAN NEUBARTH, No. 20-35539
Plaintiff-Appellant, D.C. No. 6:18-cv-01730-AC
v.
MEMORANDUM*
COLLETE PETERS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding**
Submitted December 14, 2021***
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Oregon state prisoner Aaron Van Neubarth appeals pro se from the district
court’s summary 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.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on Neubarth’s
allegations regarding his gastrointestinal issues and umbilical hernia because these
issues were determined by a valid and final determination in a prior proceeding.
See ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th
Cir. 2014) (the preclusive effect of a state court judgment is determined by
applying that state’s preclusion principles); Nelson v. Emerald People’s Util. Dist.,
862 P.2d 1293, 1296-97 (Or. 1993) (requirements of issue preclusion under
Oregon law).
The district court properly granted summary judgment on Neubarth’s claims
against defendant Dravis because Neubarth failed to exhaust his administrative
remedies and failed to raise a genuine dispute of material fact as to whether
administrative remedies were effectively unavailable. See Woodford v. Ngo, 548
U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . 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)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc)
(explaining that once the defendant has carried the burden to prove that there was
an available administrative remedy, the burden shifts to the plaintiff to produce
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evidence showing that administrative remedies were effectively unavailable to
him).
The district court did not abuse its discretion by denying Neubarth’s motion
for a preliminary injunction because Neubarth failed to demonstrate that such relief
is warranted. See Jackson v. City & County of San Francisco, 746 F.3d 953, 958
(9th Cir. 2014) (plaintiff seeking preliminary injunction must establish that he is
likely to succeed on the merits, he is likely to suffer irreparable harm in the
absence of preliminary relief, the balance of equities tips in his favor, and an
injunction is in the public interest).
The district court did not abuse its discretion by denying Neubarth’s motions
for appointment of counsel because Neubarth failed to demonstrate 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).
All pending motions and requests are denied.
AFFIRMED.
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