                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 02 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL S. YELLEN,                               No.    12-17445

              Plaintiff-Appellant,               D.C. No.
                                                 2:94-cv-01298-GEB-DAD
 v.

ANA M. OLIVAREZ; et al.,                         MEMORANDUM*

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell, Jr., District Judge, Presiding

                          Submitted September 1, 2016**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Michael Yellen appeals the district court’s order granting summary

judgment in favor of Defendants on his Eighth Amendment claim under 42 U.S.C.

§ 1983. Yellen alleged he was subjected to cruel and unusual punishment while


         *
             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).
incarcerated at Deuel Vocational Institution (DVI) because the water at DVI

appeared, smelled, and tasted bad, and was harmful to his health. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Yellen contends the district court erred by denying his motion to reopen

discovery filed over ten years after discovery closed. Yellen requested additional

discovery related to a $36,000,000 water treatment plant that was installed at DVI

after he left, and he requested an order permitting him to access DVI to collect

additional water samples. The district court has “wide latitude” over discovery

decisions, and we review its decisions for abuse of discretion. Volk v. D.A.

Davison & Co., 816 F.2d 1406, 1416–17 (9th Cir. 1987). The court “abuses its

discretion only if the movant diligently pursued its previous discovery

opportunities, and if the movant can show how allowing additional discovery

would have precluded summary judgment.” Panatronic USA v. AT&T Corp., 287

F.3d 840, 846 (9th Cir. 2002). Yellen did not demonstrate how reopening

discovery would have precluded summary judgment. Evidence of construction of

a water treatment plant after Yellen left DVI would not negate the court-appointed

expert’s conclusion that water samples taken at the time of Yellen’s confinement

did not pose a health hazard, nor would water samples collected years after he left

DVI.


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      Yellen also argues that the district court erred by granting summary

judgment to defendants on his Eighth Amendment claim. We review de novo the

district court’s summary judgment order. Earl v. Nielsen Media Research, Inc.,

658 F.3d 1108, 1112 (9th Cir. 2011). The district court properly determined that

Yellen did not raise a triable issue of fact on this claim. To prove an Eighth

Amendment violation based on prison conditions, Yellen was required to provide:

(1) an objective showing of a denial of “the minimal civilized measures of life’s

necessities”; and (2) a subjective showing that prison officials acted with

“deliberate indifference” by allowing the deprivation to occur. Wilson v. Seiter,

501 U.S. 294, 297 (1991); Rhodes v. Chapman, 452 U.S. 337, 347 (9th Cir. 1981).

Yellen’s allegation that the DVI water appeared, smelled, and tasted bad, even if

proven, did not constitute an Eighth Amendment violation because the Eighth

Amendment requires only that food and water be “adequate to maintain health,”

not that it be “tasty or aesthetically pleasing.” Keenan v. Hall, 83 F.3d 1038, 1091

(9th Cir. 1996). The district court properly determined that Yellen did not raise a

triable issue of fact on his other allegation—that the DVI water posed a health

hazard—because Yellen provided insufficient evidence to counter the court-

appointed expert’s conclusion that the water posed no health hazard.

      AFFIRMED.


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