                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

EARL DOUGLAS WILKINS,                           No.    17-35657

                Plaintiff-Appellant,            D.C. No. 6:16-cv-00319-SB

 v.
                                                MEMORANDUM*
COLETTE PETERS, Director, Oregon
Dept. Of Corrections; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                            Submitted April 11, 2018**

Before:      SILVERMAN, PAEZ, and OWENS, Circuit Judges.

      Earl Douglas Wilkins, an Oregon state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

retaliation, deliberate indifference to his serious medical needs, and due process

violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

      *
             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).
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (exhaustion); Ford v.

City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013) (cross-motions for summary

judgment). We affirm.

      The district court properly granted summary judgment on Wilkins’s

retaliation claims because Wilkins did not exhaust his administrative remedies, and

failed to raise a genuine dispute of material fact as to whether administrative

remedies were effectively unavailable to him. See Ross v. Blake, 136 S. Ct. 1850,

1858-60 (2016) (setting forth circumstances when administrative remedies are

unavailable); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (a prisoner must exhaust

administrative remedies, “which means using all steps that the agency holds out,

and doing so properly (so that the agency addresses the issues on the merits)”

(citation and internal quotation marks omitted)).

      The district court properly granted summary judgment on Wilkins’s

deliberate indifference claim because Wilkins failed to raise a genuine dispute of

material fact as to whether defendants were deliberately indifferent to his ankle

injury. See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (deliberate

indifference is a high legal standard; neither medical malpractice nor negligence

amounts to deliberate indifference).

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      The district court properly granted summary judgment on Wilkins’s due

process claims arising from defendant Nofziger’s decision not to call a witness at

Wilkins’s disciplinary and sanctions hearings because Wilkins failed to raise a

genuine dispute of material fact as to whether that witness would have provided

any relevant, non-cumulative evidence. See Wolff v. McDonnell, 418 U.S. 539,

566 (1974) (“Prison officials must have the necessary discretion . . . to refuse to

call witnesses [for reasons such as] irrelevance [or] lack of necessity . . . .”).

Because defendants afforded Wilkins a disciplinary hearing as well as

administrative review, Wilkins received all the process he was due. See id. at 564-

67 (prison officials must provide advance written notice of the claimed violation; a

written statement as to the evidence relied upon and the reasons for the disciplinary

action taken; and a limited right for inmates to call witnesses and present

documentary evidence in their defense); see also Superintendent v. Hill, 472 U.S.

445, 455 (1985) (“[T]he requirements of due process are satisfied if some evidence

supports the decision by the prison disciplinary board . . . .”).

      The district court did not abuse its discretion in denying Wilkins’s motion to

appoint counsel because Wilkins failed to demonstrate exceptional circumstances.

See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of

                                            3                                        17-35657
review and exceptional circumstances requirement for appointment of counsel).

      The district court did not abuse its discretion in denying Wilkins’s motion to

appoint an expert because the deliberate indifference claim was not so complex as

to require an independent expert. See Walker v. Am. Home Shield Long Term

Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999) (setting forth standard of

review).

      We reject as unsupported by the record Wilkins’s contentions that the

district court did not liberally construe his pro se pleadings, and that the district

court applied the wrong standard of review in reviewing the magistrate judge’s

findings and recommendations.

      AFFIRMED.




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