                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 24 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARMANDO ANTONIO MARROQUIN,                       No. 13-15580

              Plaintiff - Appellant,             D.C. No. 4:09-cv-03841-SBA

 v.
                                                 MEMORANDUM*
T. GRADY, Correctional Officer and J.
RECIO, Correctional Officer,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                        Argued and Submitted June 15, 2016
                             San Francisco, California

Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.

      Armando Marroquin appeals the district court’s entry of summary judgment

in his 42 U.S.C. § 1983 action against Correctional Officers Grady and Recio and

the dismissal of his § 1983 claims against Officer Montano and Warden Evans.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in granting summary judgment against

Marroquin on his claims that Correctional Officers Grady and Recio violated the

Eighth Amendment through deliberate indifference to Marroquin’s safety. Even

taking into account Marroquin’s October 2011 affidavit, Marroquin’s conditioning

his transfer request on the availability of a lower bunk undermined the urgency of

his situation such that no reasonable jury could have concluded that Officer Recio

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

of serious harm exists.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Similarly,

in the absence of any visible emergency situation in Marroquin’s cell, Marroquin’s

message to Officer Grady referencing an emergency was insufficient to alert Grady

that there was a serious risk to Marroquin’s safety, particularly given testimony

that prisoners frequently claimed that non-urgent situations were emergencies. No

reasonable jury could have concluded that either officer actually drew the inference

that Marroquin faced a substantial risk of serious harm. Id.

      The district court did not err in dismissing Marroquin’s claim that

defendants Montano and Evans violated his Eighth Amendment rights through

deliberate indifference to his safety. Based on Marroquin’s allegations, Officer

Montano was merely present in the cell block on the day Marroquin was assaulted,

which is insufficient to “state a claim to relief that is plausible on its face.” Chavez


                                           2
v. United States, 683 F.3d 1102, 1108–09 (9th Cir. 2012) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). Likewise, Marroquin failed to allege that

Warden Evans either was personally involved in the alleged deprivation of

Marroquin’s rights or implemented a policy that was the “moving force” behind

the constitutional violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

2011); Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995).

          The district court did not err in granting summary judgment against

Marroquin on his claims that defendants Recio and Grady violated his Eighth

Amendment rights through deliberate indifference to medical needs. No

reasonable jury could have concluded that the officers’ conduct proximately caused

Marroquin to be denied medical care, because Marroquin had access to medical

personnel for nearly two weeks before he was placed on “C” status and was able to

submit a medical request form during the period that he claims he was denied such

access. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.

2013). The district court likewise did not err in dismissing Marroquin’s medical

needs claims against defendants Montano and Evans because Marroquin did not

allege that he was denied access to medical care prior to being placed on “C”

status.




                                            3
      The district court did not abuse its discretion in denying Marroquin’s motion

to vacate the judgment under Federal Rule of Civil Procedure 59(e). Marroquin

failed to identify new evidence that he could not have discovered earlier in the

litigation and the district court did not plainly err. See Zimmerman v. City of

Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

      The district court did not abuse its discretion in denying Marroquin’s four

motions to appoint counsel. The district court offered a reasoned explanation for

each denial that was not illogical, implausible, or without support in the record.

See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); see also United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). Even if the district court

erred by failing to address the likelihood of success of Marroquin’s claims, see

Palmer, 560 F.3d at 970, any such error was harmless in light of Marroquin’s low

probability of success.

      Because we affirm the district court’s judgment against Marroquin in its

entirety, we deny Marroquin’s motion to remand this case to a different judge as

moot. See United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780 (9th Cir.

1986).

      AFFIRMED.




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