                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 19 2013

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




                             FOR THE NINTH CIRCUIT



RODNEY JEROME WOMACK,                             No. 10-17324

               Plaintiff - Appellant,             D.C. No. 2:09-cv-01431-GEB-
                                                  KJM
  v.

C. BAKEWELL; VU DUC,                              MEMORANDUM *

               Defendants - Appellees.



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

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       California state prisoner Rodney Jerome Womack appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his need for adequate pain medication for his ankle. We have




          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

exhaust administrative remedies, Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir.

2010), and we affirm.

      The district court properly dismissed Womack’s action because Womack

failed to exhaust his administrative remedies before filing suit and to provide

sufficient evidence showing that administrative remedies were effectively

unavailable to him. See id. at 821-22 (prisoners must exhaust administrative

remedies in compliance with prison procedures and deadlines before filing suit

unless such remedies are “effectively unavailable”).

      We do not consider Womack’s allegations concerning defendants’ alleged

denial of a wheelchair, crutches and cane because Womack failed to include such

allegations in his operative complaint. See Padgett v. Wright, 587 F.3d 983, 985

n.2 (9th Cir. 2009) (per curiam).

      The district court did not abuse its discretion by failing to appoint counsel or

an investigator for Womack where there were no exceptional circumstances

warranting such appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

2009) (setting forth the standard of review and explaining the “exceptional

circumstances” requirement).




                                          2                                       10-17324
       Womack’s request for appointment of an investigator, set forth in his reply

brief, is denied.

       AFFIRMED.




                                          3                                   10-17324
