FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODNEY JEROME WOMACK, No. 10-17324
Plaintiff - Appellant, D.C. No. 2:09-cv-01431-GEB-
KJM
v.
C. BAKEWELL; VU DUC, MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
California state prisoner Rodney Jerome Womack appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his need for adequate pain medication for his ankle. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
exhaust administrative remedies, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir.
2010), and we affirm.
The district court properly dismissed Womack’s action because Womack
failed to exhaust his administrative remedies before filing suit and to provide
sufficient evidence showing that administrative remedies were effectively
unavailable to him. See id. at 821-22 (prisoners must exhaust administrative
remedies in compliance with prison procedures and deadlines before filing suit
unless such remedies are “effectively unavailable”).
We do not consider Womack’s allegations concerning defendants’ alleged
denial of a wheelchair, crutches and cane because Womack failed to include such
allegations in his operative complaint. See Padgett v. Wright, 587 F.3d 983, 985
n.2 (9th Cir. 2009) (per curiam).
The district court did not abuse its discretion by failing to appoint counsel or
an investigator for Womack where there were no exceptional circumstances
warranting such appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009) (setting forth the standard of review and explaining the “exceptional
circumstances” requirement).
2 10-17324
Womack’s request for appointment of an investigator, set forth in his reply
brief, is denied.
AFFIRMED.
3 10-17324