FILED
NOT FOR PUBLICATION SEP 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REO BOREN, Nos. 11-15990, 11-16070
Plaintiff - Appellant, D.C. No. 3:08-cv-00174-LRH-
VPC
v.
BOCCA, Warden; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
In these consolidated appeals, former Nevada state prisoner Reo Boren
appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action
alleging excessive force, conspiracy, and unconstitutional conditions-of-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
confinement claims. 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
judgment); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (dismissal for
failure to exhaust); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order) (dismissal under 28 U.S.C. § 1915(e)). We affirm.
The district court properly granted summary judgment on Boren’s excessive
force claim because Boren failed to raise a genuine dispute of material fact as to
whether defendants acted maliciously or sadistically to cause harm when
restraining him during the July 5, 2007 incident, or escorting him to the infirmary
afterwards. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (core judicial inquiry
in determining excessive physical force in violation of Eighth Amendment is
whether force was applied in good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm).
The district court properly dismissed Boren’s conspiracy claim for failure to
state a claim. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982) (vague and conclusory allegations of official participation in civil
rights violations are not sufficient to withstand dismissal).
2 11-15990
The district court properly dismissed without prejudice Boren’s conditions-
of-confinement claim because Boren failed to exhaust administrative remedies.
See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper
exhaustion” is mandatory and requires adherence to administrative procedural
rules).
The district court did not abuse its discretion in denying Boren’s motions for
appointment of counsel because Boren failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
Boren’s contentions regarding the district court’s alleged procedural errors
and bias are unpersuasive.
We do not consider the district court’s denial of Boren’s request for a
preliminary injunction to preserve evidence because Boren did not raise it in his
opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam).
AFFIRMED.
3 11-15990