                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 03 2011

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




                             FOR THE NINTH CIRCUIT



GREGORY TYREE BROWN,                              No. 09-35945

               Plaintiff - Appellant,             D.C. No. 3:08-cv-05326-RBL

  v.
                                                  MEMORANDUM *
DEVON SCHRUM; et al.,

               Defendants,

  and

RICHARD MORGAN; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.




          *
             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).
      Gregory Tyree Brown, a Washington state prisoner, appeals pro se from the

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

jurisdiction under 28 U.S.C. § 1291. We review de novo. Jones v. Blanas, 393

F.3d 918, 926 (9th Cir. 2004). We affirm in part, vacate in part, and remand.

      The district court properly granted summary judgment as to the six served

Care Review Committee members because Brown failed to raise a genuine issue of

material fact as to whether they knew of and disregarded his serious medical need

in denying exploratory hand surgery. See Farmer v. Brennan, 511 U.S. 825, 837

(1994) (to be deliberately indifferent, a prison official must “know[] of and

disregard[] an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference”).

      Brown first argued in his objections to the Magistrate Judge’s Report and

Recommendations that his deliberate indifference and due process claims against

the non-Care Review Committee defendants were tolled while he was exhausting

the administrative grievance process. See Brown v. Valoff, 422 F.3d 926, 943 (9th

Cir. 2005) (instructing that the applicable statute of limitations must be tolled while

a prisoner completes the mandatory grievance process). On this record, it is not

clear whether the district court exercised its discretion to consider Brown’s


                                           2                                    09-35945
arguments regarding tolling. See Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002)

(district court abused its discretion in failing to consider pro se prisoner’s equitable

tolling argument raised for the first time in objection to magistrate judge’s report

and recommendations); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.

2000) (“[I]n making a decision on whether to consider newly offered evidence, the

district court must actually exercise its discretion, rather than summarily accepting

or denying the motion.”). We vacate the judgment as to these defendants, and we

remand to allow the district court the opportunity to exercise its discretion.

      The district court did not abuse its discretion in dismissing without prejudice

the unserved defendants, where Brown’s motion for an extension of scheduling

deadlines was untimely, and he was given notice regarding his responsibilities to

serve each named defendant. See Townsel v. Cnty. of Contra Costa, Cal., 820 F.2d

319, 320 (9th Cir. 1987) (setting forth standard of review and good cause exception

for untimely service).

      The district court properly exercised its discretion by denying Brown’s

motion for appointment of counsel because Brown failed to demonstrate

exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 967, 970 (9th Cir.

2009) (not an abuse of discretion to deny appointed counsel where incarcerated

plaintiff alleged that incarceration hampered discovery).


                                            3                                     09-35945
      The district court did not abuse its discretion by denying Brown’s motions to

compel discovery, stay defendant’s motion for summary judgment, and reopen

discovery because the information sought from one defendant was unknown to her

and other information sought would not preclude summary judgment. See Klingele

v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (“To determine whether discovery

would have been fruitless, we look to the legal theories that might sustain the

prisoner’s claims.”).

      The district court did not abuse its discretion by declining to impose Rule 11

sanctions because it found the defendant’s response to Brown’s motion for an

extension of time, although likely erroneous, was the result of understandable error

and not for any improper purpose. See Holgate v. Baldwin, 425 F.3d 671, 675,

676-77 (9th Cir. 2005).

       We have reviewed Brown’s remaining contentions and conclude they are

not persuasive.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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