Michael Victory v. ARNOLD SCHWARZENEGGER, Governor;

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL VICTORY,
Plaintiff - Appellant,
v.
ARNOLD SCHWARZENEGGER,
Governor; et al.,
Defendants - Appellees.
No. 11-16187
D.C. No. 1:05-cv-01578-LJO-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
California state prisoner Michael Victory appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
FILED
FEB 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1291. We review de novo summary judgment, Barnett v. Centoni, 31 F.3d 813,
815 (9th Cir. 1994) (per curiam), and a determination that a prisoner failed to
exhaust administrative remedies under the Prison Litigation Reform Act, Wyatt v.
Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.
The district court properly granted summary judgment because Victory
failed to establish a genuine dispute of material fact as to whether defendants
consciously disregarded Victory’s serious medical needs by denying his requests
for an egg crate mattress, a lower tier cell, an MRI, and a bone scan. See Toguchi
v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing objective and subjective
elements of deliberate indifference claim); see also id. at 1059-60 (difference of
opinion concerning the appropriate course of treatment does not amount to
deliberate indifference).
The district court properly dismissed Victory’s claims concerning
defendants’ alleged interference with his prescription medicine becuase Victory
failed to exhaust administrative remedies with respect to these claims. 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); Sapp v.
Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010) (futility exception to the

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administrative exhaustion requirement requires that the inmate establish “that he
actually filed a grievance or grievances”).
The district court did not abuse its discretion in denying Victory’s multiple
requests for appointment of counsel because Victory failed to demonstrate
exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009) (setting forth standard of review and the exceptional circumstances
requirement).
The district court did not abuse its discretion in denying Victory’s motion to
compel because the motion was untimely and Victory failed to establish good
cause to excuse his late filing. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,
1084, 1093 (9th Cir. 2003) (setting forth standard of review and allowing reversal
only with “the clearest showing that the denial of discovery results in actual and
substantial prejudice to the complaining litigant”).
Victory’s motion for judicial notice, filed on August 12, 2011, is granted.
AFFIRMED.

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