                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 14 2013

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




                             FOR THE NINTH CIRCUIT



BILLY DRIVER,                                     No. 12-16747

               Plaintiff - Appellant,             D.C. No. 3:10-cv-02226-SI

  v.
                                                  MEMORANDUM *
B. HEDRICK, Chief Deputy; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                              Submitted June 10, 2013 **

Before:        HAWKINS, McKEOWN, and BERZON, Circuit Judges.

       California state prisoner Billy Driver appeals pro se from the district court’s

judgment dismissing for failure to exhaust his 42 U.S.C. § 1983 action alleging

excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010), and we affirm.

          *
             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).
      The district court properly dismissed Driver’s action because Driver failed to

exhaust his administrative grievances concerning the incident underlying his claim

through the required levels. See id. at 818, 821 (discussing levels of review

required for proper exhaustion under California state regulations).

      The district court did not abuse its discretion in denying Driver’s motion for

default judgment because defendants waived their right to reply to Driver’s action

under the Prison Litigation Reform Act, and the district court did not order them to

file a reply. See 42 U.S.C. § 1997e(g) (defendant may waive the right to reply to

any action brought by a prisoner, after which the court may order defendant to

respond); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth

standard of review and factors for entry of default judgment).

      Driver’s contentions regarding the allegedly erroneous denial of his motions

for disqualification, for appointment of counsel, and for early medical release, and

regarding miscellaneous alleged misconduct by defendants, are unpersuasive.

      Driver’s motion for a “criminal obstruction investigation against the state

attorney general,” filed on May 16, 2013 is denied.

      Driver’s motion for an order to show cause for a preliminary injunction and

temporary restraining order, filed on May 22, 2013, is denied.

      Driver’s motion for an order compelling oral argument, filed on May 23,


                                          2                                     12-16747
2013, is denied.

      Driver’s requests for appointment of counsel on appeal and on

“reversal/remand/modification,” set forth in his briefs, are denied.

      AFFIRMED.




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