Clifford Dilbert v. John E. Potter

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The parties consented to the jurisdiction of the 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFFORD DILBERT,
Plaintiff - Appellant,
v.
JOHN E. POTTER,
Defendant - Appellee.
No. 09-16405
D.C. No. 3:05-cv-00087-MEJ
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
Submitted October 19, 2010***
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
Clifford Dilbert appeals pro se from the district court’s summary judgment
in his employment action alleging disability and age discrimination and
FILED
NOV 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-16405 2
retaliation. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
of discretion the denial of a motion for appointment of counsel. Johnson v. U.S.
Treasury Dep’t, 27 F.3d 415, 416 (9th Cir. 1994) (per curiam). We affirm.
The district court did not abuse its discretion by denying Dilbert’s motion
for appointment of counsel given the unlikeliness of success on the merits. See
Johnson, 27 F.3d at 417 (appointment of counsel in employment action); Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (28 U.S.C. § 1915 requires
exceptional circumstances to warrant appointment of counsel).
The district court did not abuse its discretion by denying Dilbert’s motion to
compel and requests for a continuance of the summary judgment motion to obtain
further discovery. See Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir. 2008)
(setting forth standard of review).
On appeal, Dilbert does not challenge the merits of the grant of summary
judgment. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments
not raised by a party in its opening brief are deemed waived.”).
Dilbert’s remaining contentions are unpersuasive.
AFFIRMED.

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