                                                                            FILED
                             NOT FOR PUBLICATION                            SEP 25 2012

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




                             FOR THE NINTH CIRCUIT



REO BOREN,                                       Nos. 11-15990, 11-16070

               Plaintiff - Appellant,            D.C. No. 3:08-cv-00174-LRH-
                                                 VPC
  v.

BOCCA, Warden; et al.,                           MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted September 10, 2012 **

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

       In these consolidated appeals, former Nevada state prisoner Reo Boren

appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action

alleging excessive force, conspiracy, and unconstitutional conditions-of-




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
confinement claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary

judgment); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (dismissal for

failure to exhaust); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

(order) (dismissal under 28 U.S.C. § 1915(e)). We affirm.

      The district court properly granted summary judgment on Boren’s excessive

force claim because Boren failed to raise a genuine dispute of material fact as to

whether defendants acted maliciously or sadistically to cause harm when

restraining him during the July 5, 2007 incident, or escorting him to the infirmary

afterwards. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (core judicial inquiry

in determining excessive physical force in violation of Eighth Amendment is

whether force was applied in good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm).

      The district court properly dismissed Boren’s conspiracy claim for failure to

state a claim. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268

(9th Cir. 1982) (vague and conclusory allegations of official participation in civil

rights violations are not sufficient to withstand dismissal).




                                           2                                    11-15990
          The district court properly dismissed without prejudice Boren’s conditions-

of-confinement claim because Boren failed to exhaust administrative remedies.

See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper

exhaustion” is mandatory and requires adherence to administrative procedural

rules).

          The district court did not abuse its discretion in denying Boren’s motions for

appointment of counsel because Boren failed to demonstrate exceptional

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

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

          Boren’s contentions regarding the district court’s alleged procedural errors

and bias are unpersuasive.

          We do not consider the district court’s denial of Boren’s request for a

preliminary injunction to preserve evidence because Boren did not raise it in his

opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam).

          AFFIRMED.




                                             3                                      11-15990
