                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 01 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



CLIFFORD DILBERT,                                 No. 09-16405

                Plaintiff - Appellant,            D.C. No. 3:05-cv-00087-MEJ

  v.
                                                  MEMORANDUM *
JOHN E. POTTER,

                Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Northern District of California
                   Maria-Elena James, Magistrate Judge, Presiding **

                             Submitted October 19, 2010 ***

Before:         O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

       Clifford Dilbert appeals pro se from the district court’s summary judgment

in his employment action alleging disability and age discrimination and


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **
            The parties consented to the jurisdiction of the 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).
retaliation. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse

of discretion the denial of a motion for appointment of counsel. Johnson v. U.S.

Treasury Dep’t, 27 F.3d 415, 416 (9th Cir. 1994) (per curiam). We affirm.

      The district court did not abuse its discretion by denying Dilbert’s motion

for appointment of counsel given the unlikeliness of success on the merits. See

Johnson, 27 F.3d at 417 (appointment of counsel in employment action); Terrell v.

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (28 U.S.C. § 1915 requires

exceptional circumstances to warrant appointment of counsel).

      The district court did not abuse its discretion by denying Dilbert’s motion to

compel and requests for a continuance of the summary judgment motion to obtain

further discovery. See Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir. 2008)

(setting forth standard of review).

      On appeal, Dilbert does not challenge the merits of the grant of summary

judgment. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments

not raised by a party in its opening brief are deemed waived.”).

      Dilbert’s remaining contentions are unpersuasive.

      AFFIRMED.




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