Kennard Davis v. Michael Yarborough

FILED NOT FOR PUBLICATION NOV 22 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT KENNARD LEE DAVIS, No. 10-17210 Plaintiff - Appellant, D.C. No. 2:04-cv-00821-LKK- KJM v. MICHAEL YARBOROUGH; et al., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding ** Submitted November 21, 2011 Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges. Kennard Lee Davis, a California state prisoner, 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. § 1291. We review for an abuse of discretion the district court’s decision * 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). not to appoint counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), and decision not to hold an evidentiary hearing, Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). We affirm. The district court did not abuse its discretion in denying Davis’s requests to appoint counsel because Davis did not show the “exceptional circumstances” required to appoint counsel under 28 U.S.C. § 1915(e)(1). See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (articulating standard). The district court did not abuse its discretion in denying Davis’s requests for an evidentiary hearing because it could sufficiently evaluate Davis’s requests for counsel on the written record. See Fed. R. Civ. P. 78(b) (court may provide rule for determining motions on briefs); E.D. Cal. L.R. 230(l) (in prisoner actions, motions are deemed submitted on the record unless otherwise ordered). We do not consider the district court’s summary judgment because Davis does not challenge it on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). AFFIRMED. 2 10-17210