Colby Aplin v. Odoc

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLBY LEE APLIN, No. 19-35223
Plaintiff-Appellant, D.C. No. 6:17-cv-01222-MO
v.
MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS; et al.,
Defendants-Appellees,
and
JOE GOLEM, AKA The Golem Brothers,
Officer; et al.,
Defendants.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted April 7, 2020**
Before: TASHIMA, BYBEE, and WATFORD, 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).
Oregon state prisoner Colby Lee Aplin appeals pro se from the district
court’s summary judgment in her 42 U.S.C. § 1983 action alleging various
constitutional violations. We have jurisdiction under 28 U.S.C. § 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 on plaintiff’s claims arising
from her alleged sexual assault because plaintiff failed to file her claims within the
applicable limitations period. See Douglas v. Noelle, 567 F.3d 1103, 1109 (9th
Cir. 2009) (explaining that the statute of limitations for 42 U.S.C. § 1983 actions is
the state law statute of limitations for personal injury actions, and that the
applicable Oregon statute of limitations is two years); Lukovsky v. City & County
of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008) (explaining that under
federal law, which determines accrual, a claim accrues “when the plaintiff knows
or has reason to know of the injury which is the basis of the action,” and the
“discovery rule” is “incorporated into federal accrual law” (citations and internal
quotation marks omitted)).
The district court properly granted summary judgment on plaintiff’s claims
arising from her alleged “genital status” searches because plaintiff failed to exhaust
her administrative remedies and failed to raise a genuine dispute of material fact as
to whether administrative remedies were effectively unavailable to her. See Ross
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v. Blake, 136 S. Ct. 1850, 1856, 1858-60 (2016) (explaining that an inmate must
exhaust such administrative remedies as are available before bringing suit, and
describing limited circumstances in which administrative remedies are
unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper exhaustion of
administrative remedies . . . means using all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on the merits).” (citation,
internal quotation marks, and emphasis omitted)).
The district court did not abuse its discretion by denying plaintiff’s various
discovery motions and her discovery requests sent by a non-attorney third party.
See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1084, 1093 (9th Cir. 2003)
(setting forth standard of review and explaining that a district court’s “decision to
deny discovery will not be disturbed except upon the clearest showing that the
denial of discovery results in actual and substantial prejudice to the complaining
litigant” (citation and internal quotation marks omitted)); see also Wheat v. United
States, 486 U.S. 153, 159 (1988) (“[A]n advocate who is not a member of the bar
may not represent clients (other than himself) in court.”).
The district court did not abuse its discretion by denying plaintiff’s motion
for appointment of counsel because plaintiff failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement for
3 19-35223
appointment of counsel).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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