Davy Pough v. N. Grannis

FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVY KELVIN POUGH, No. 10-56531
Plaintiff - Appellant, D.C. No. 3:08-cv-01498-JM-RBB
v.
MEMORANDUM *
N. GRANNIS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Davy Kelvin Pough, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that
defendants violated his Eighth Amendment rights by denying him out-of-cell
*
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).
exercise in connection with a prison lockdown. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to
exhaust administrative remedies and its factual determinations for clear error,
Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and we affirm.
The district court properly dismissed the action because Pough failed to
exhaust administrative remedies prior to filing suit. 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).
The district court did not abuse its discretion in denying Pough’s motions to
appoint counsel because Pough did not establish exceptional circumstances. See
Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (reviewing
for abuse of discretion and explaining that a finding of exceptional circumstances
justifying appointment of counsel requires evaluation of a plaintiff’s ability to
articulate his claims); see also Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998)
(no constitutional right to appointed counsel for § 1983 claims).
Pough’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-56531