Walter Cole v. Swoop ( 2012 )

FILED
NOT FOR PUBLICATION JUL 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WALTER L. COLE, No. 09-16337
Plaintiff - Appellant, D.C. No. 2:04-CV-02735-MCE-
EFB
v.
SWOOP, Officer; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
California state prisoner Walter L. Cole appeals pro se from the district
court’s judgment as a matter of law in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his 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 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).
§ 1291. We review de novo, Torres v. City of Los Angeles, 548 F.3d 1197, 1205
(9th Cir. 2008), and we affirm.
The district court properly granted judgment as a matter of law because,
based on the evidence presented at trial, no reasonable juror could find that
appellees were deliberately indifferent to Cole’s knee and asthma conditions. See
id. (judgment as a matter of law is proper “‘if no reasonable juror could find in the
non-moving party’s favor’” (citation omitted)); Toguchi v. Chung, 391 F.3d 1051,
1057, 1060 (9th Cir. 2004) (deliberate indifference is a “high legal standard” and
prison officials act with deliberate indifference only if they know of and disregard
an excessive risk to the prisoner’s health and safety); Franklin v. Oregon, 662 F.2d
1337, 1344 (9th Cir. 1981) (“A difference of opinion between a prisoner-patient
and prison medical authorities regarding treatment does not give rise to a § 1983
claim.”).
The district court did not abuse its discretion in denying Cole’s motions for
appointment of counsel because Cole failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and requirement of “exceptional circumstances” for
appointment of counsel).
The district court did not abuse its discretion in denying Cole’s request to
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appoint an expert witness on his behalf because Cole failed to show that it was
necessary. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d
1065, 1071 (9th Cir. 1999) (setting forth standard of review and noting that district
court has discretion to appoint an expert under Fed. R. Evid. 706(a)); see also
Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (per curiam) (in forma pauperis
statute, 28 U.S.C. § 1915, does not authorize waiver of fees or expenses for an
indigent’s witnesses).
Cole’s remaining contentions, including those regarding appellees’ motions
in limine, are unpersuasive.
AFFIRMED.
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