Paul Free v. Nader Peikar ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL FREE, No. 18-17226
Plaintiff-Appellant, D.C. No. 1:17-cv-00159-AWI-JLT
v.
MEMORANDUM*
NADER PEIKAR, Facility Doctor at USP
Atwater; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Former federal prisoner Paul Free appeals pro se from the district court’s
summary judgment in his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)
(en banc). We affirm.
The district court properly granted summary judgment because Free failed to
exhaust administrative remedies and failed to raise a genuine dispute of material
fact as to whether administrative remedies were effectively unavailable. See Ross
v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (describing the limited circumstances
under which administrative remedies are unavailable and exhaustion is excused);
Booth v. Churner, 532 U.S. 731, 738-41 (2001) (inmate seeking money damages
not offered through administrative grievance mechanisms must still complete the
grievance process); see also Albino, 747 F.3d at 1171 (explaining that “if feasible,
disputed factual questions relevant to exhaustion should be decided at the very
beginning of the litigation”).
The district court did not abuse its discretion in denying Free’s request to
subpoena prison witnesses because Free has not demonstrated prejudice as a result
of the district court’s ruling. See Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014,
1018 (9th Cir. 2011) (setting forth the standard of review and explaining that the
district court’s evidentiary ruling will be upheld unless it was “manifestly
erroneous and prejudicial” (citation and internal quotation marks omitted)).
We reject as unsupported by the record Free’s alternate contention that he
was excused from exhaustion based on the prison’s responses to the pre-November
2 18-17226
2015 grievances.
Free’s request for appointment of counsel, set forth in his opening brief, is
denied.
AFFIRMED.
3 18-17226