                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ANDRE' BOSTON,                                   No. 13-17140

               Plaintiff - Appellant,            D.C. No. 2:10-cv-01782-KJM-
                                                 DAD
  v.

V. GARCIA; et al.,                               MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                            Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       California state prisoner Andre' Boston appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to

his serious medical needs. 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

          *
             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).
judgment); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)

(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm.

       The district court properly granted summary judgment on Boston’s claims

against Garcia, Alkire, and Renauld because Boston failed to raise a genuine

dispute of material fact as to whether these defendants were deliberately indifferent

to his lung disease by not transferring him to a lower altitude prison. See Toguchi,

391 F.3d at 1057-60 (deliberate indifference is a high legal standard, and is met

only if the prison official knows of and disregards an excessive risk to the

prisoner’s health; negligence and a mere difference in medical opinion are

insufficient).

       The district court properly dismissed Boston’s claims against the remaining

defendants because Boston failed to allege facts showing that these defendants

knew of and disregarded an excessive risk of harm to his health. See id.

       The district court did not abuse its discretion in denying Boston’s motions to

appoint counsel because Boston did not establish exceptional circumstances. See

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

review and “exceptional circumstances” requirement for appointment of counsel).

       The district court did not abuse its discretion in granting defendants’ motion

to extend discovery and withdraw admissions or in denying Boston’s motion to


                                          2                                    13-17140
find defendants’ responses insufficient. See Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 607, 609 (9th Cir. 1992) (standard of review and requirements

to modify a scheduling order under Fed. R. Civ. P. 16(b)(4)); Asea, Inc. v. S. Pac.

Transp. Co., 669 F.2d 1242, 1247-48 (9th Cir. 1981) (standard of review of order

regarding withdrawal of admissions under Fed. R. Civ. P. 36(b) and of order

regarding sufficiency of discovery responses under Fed. R. Civ. P. 36(a)).

      Defendants’ request for judicial notice, filed on May 5, 2014, is denied as

unnecessary.

      AFFIRMED.




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