Andre Drew v. Craig Apker

FILED
NOT FOR PUBLICATION FEB 3 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE DREW, No. 13-17113
Plaintiff - Appellant, D.C. No. 4:10-cv-00315-BGM
v.
MEMORANDUM*
CRAIG APKER,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Bruce G. Macdonald, Magistrate Judge, Presiding**
Submitted January 21, 2015***
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Federal prisoner Andre Drew appeals pro se from the district court’s
judgment following a bench trial in his action under Bivens v. Six Unknown Named
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a 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).
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.
§ 1291. We review de novo the district court’s conclusions of law and for clear
error its findings of fact. Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912,
915 (9th Cir. 2005). We affirm.
After reviewing the record, we cannot say that the district court clearly erred
by concluding that the evidence was insufficient to establish that Drew’s gastritis
and other gastrointestinal ailments were serious medical conditions. See Fed. R.
Civ. P. 52(a)(6) (“Findings of fact . . . must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.”); Anderson v. Bessemer City, 470
U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may not
reverse even though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.”); see also McGuckin v. Smith, 974 F.2d
1050, 1059-60 (9th Cir. 1992) (defining a serious medical condition for purposes
of an Eighth Amendment violation), overruled on other grounds by WMX Techs.,
Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
The district court did not abuse its discretion by keeping discovery closed
2 13-17113
after appointing counsel to assist Drew at trial when fact discovery had been closed
for nearly five months and Drew did not seek an extension of time to conduct
additional discovery outside the discovery period set forth in the scheduling order.
See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (noting the
district court’s broad discretion in discovery matters); see also Fed. R. Civ.
P. 16(b)(4) (“A schedule may be modified only for good cause and with the
judge’s consent.”).
We reject Drew’s contentions concerning the trial court’s alleged restriction
on his ability to reference defendant’s criminal conduct.
AFFIRMED.
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