                                                                            FILED
                             NOT FOR PUBLICATION                             OCT 07 2010

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




                             FOR THE NINTH CIRCUIT

LAWRENCE BIRKS,                                  No. 08-15841

               Plaintiff - Appellant,            D.C. No. 2:05-CV-01105-LKK-
                                                 EFB
  v.

C. A. TERHUNE, California Department             MEMORANDUM *
of Corrections; et al.,

               Defendants - Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N. R. SMITH, Circuit Judges.

       Lawrence Birks, a California state prisoner, appeals pro se from the district

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

used excessive force against him and acted with deliberate indifference to his



          *
             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).

                                                                                   08-15841
serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a grant of summary judgment. Toguchi v. Chung, 391 F.3d 1051, 1056

(9th Cir. 2004). We review de novo the district court’s dismissal of claims for

failure to exhaust administrative remedies under the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a), and review for clear error its factual

determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We

affirm.

      The district court properly granted summary judgment for defendant

McGuire on Birks’s excessive force claim. Birks failed to present evidence

creating a genuine issue of material fact as to whether McGuire applied force “in a

good faith effort to restore discipline and order and not ‘maliciously and

sadistically for the very purpose of causing harm.’” Clement v. Gomez, 298 F.3d

898, 903 (9th Cir. 2002) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).

      The district court properly granted summary judgment for McGuire on

Birks’s deliberate indifference claim because Birks failed to present evidence of

injury from the alleged indifference. See Shapley v. Nev. Bd. of State Prison

Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam) (a delay in medical

treatment must lead to further injury to support a claim for deliberate indifference).

To the extent Birks’s claim relating to his medical treatment is that McGuire


                                           2                                    08-15841
breached a duty of medical confidentiality owed to Birks, that claim fails. See

Seaton v. Mayberg, 610 F.3d 530, 534-35 (9th Cir. 2010) (prisoners’ privacy

interest in medical treatment information yields to prisons’ interest in maintaining

security).

      The district court properly dismissed Birks’s claims against defendants

Runnels and Cummings because Birks failed to exhaust his administrative

remedies before filing suit naming these defendants. See McKinney v. Carey, 311

F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (PLRA “requires exhaustion before

the filing of a complaint and . . . a prisoner does not comply with this requirement

by exhausting available remedies during the course of the litigation”). We

construe the dismissals of Birks’s claims against Runnels and Cummings to be

without prejudice. See Wyatt, 315 F.3d at 1120 (dismissals for failure to exhaust

administrative remedies are without prejudice).

      The district court did not abuse its discretion in dismissing Birks’s claims

against defendants Mangis and Barron under Rule 4(m) of the Federal Rules of

Civil Procedure because, despite ample time provided by the district court, Birks

failed to provide information needed by the United States Marshal to serve these

defendants. See Fed. R. Civ. P. 4(m); Oyama v. Sheehan (In re Sheehan), 253 F.3d

507, 511 (9th Cir. 2001) (reviewing for abuse of discretion Rule 4(m) dismissal).


                                          3                                     08-15841
      The district court did not abuse its discretion in denying Birks’s request for

additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure

because Birks did not show how allowing him additional discovery would have

precluded summary judgment. See Margolis v. Ryan, 140 F.3d 850, 853-54 (9th

Cir. 1998) (reviewing for abuse of discretion and upholding denial of discovery

under Rule 56(f) where “appellants failed to identify facts, either discovered or

likely to be discovered, that would support their § 1983 claim”).

      Birks’s remaining contentions are unpersuasive.

      Birks’s pending motions are denied.

      AFFIRMED.




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