Opinion
No. 19-15052 No. 19-55180
05-26-2021
DERRICK JESUS ODEN, Sr., Petitioner-Appellant, v. J. ACEBEDO; et al., Defendants-Appellees, and STATE OF CALIFORNIA; ANTHONY GROUNDS, Defendants. DERRICK JESUS ODEN, Sr., Plaintiff-Appellant, v. J. ACEBEDO; et al., Defendants-Appellees, and ANTHONY GROUNDS; STATE OF CALIFORNIA, Defendants.
NOT FOR PUBLICATION
D.C. No. 1:14-cv-00873-LJO-BAM MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding D.C. No. 2:17-cv-05639-AG-JPR Appeal from the United States District Court for the Central District of California
Andrew J. Guilford, District Judge, Presiding Submitted November 19, 2020 Pasadena, California Before: LINN, RAWLINSON, and FORREST, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. --------
In this consolidated appeal of actions pending in both the Central and Eastern District of California, Derrick Oden, a California prisoner, sued several prison officials (Defendants) for money damages under 42 U.S.C. § 1983. Oden alleged that Defendants violated his Eighth Amendment rights by acting with deliberate indifference towards his increased risk for Valley Fever. Both district courts concluded that the Defendants were entitled to qualified immunity and dismissed Oden's complaints. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Qualified Immunity. "We review whether the officials are entitled to qualified immunity de novo." Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir. 2019). Here, the district courts properly found that the Defendants were entitled to qualified immunity because the "right to be free from heightened risk of Valley Fever was not clearly established when the officials acted." Id. at 1228. Oden's arguments that Hines is inapplicable are unpersuasive.
Appointment of Counsel. Oden moved for and was denied appointment of counsel under 28 U.S.C. § 1915(e)(1) in his case pending in the Central District. We review the denial of appointed counsel in civil cases for an abuse of discretion. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). Courts grant requests for counsel in civil rights cases only in exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Here, Oden effectively drafted his own pleadings and made numerous filings. We find exceptional circumstances are not present and conclude that the district court did not abuse its discretion.
Appointment of Expert. Oden also moved for and was denied appointment of an expert witness in his Central District case. The court has discretion to appoint a neutral expert under Federal Rule of Evidence 706. Again, we conclude the district court did not abuse its discretion in denying Oden's request because discovery had not yet been ordered and Oden did not persuasively articulate how an expert would help him in objecting to the magistrate judge's Report and Recommendation regarding Defendants' motion to dismiss.
AFFIRMED.