                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STACY G. HALL,                                  No.    18-35149

                Plaintiff-Appellant,            D.C. No. 6:14-cv-00011-DLC

 v.
                                                MEMORANDUM*
LEROY KIRKEGARD; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                           for the District of Montana
               Dana L. Christensen, Chief District Judge, Presiding

                             Submitted May 22, 2020**


Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.

      Stacy Hall, a Montana state prisoner, appeals pro se from the district court’s

summary judgment in favor of prison officials in Hall’s civil rights action. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Ward v. Ryan,

623 F.3d 807, 810 (9th Cir. 2010), and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The district court properly granted summary judgment to defendants on

Hall’s Eighth Amendment claim that he was improperly restrained during medical

treatment. We do not discern any constitutional deficiency with the prison’s

requirement that locked housing inmates must be restrained for safety reasons

when in direct contact with staff, including in the infirmary. This policy includes

an exception when a physician, a physician’s assistant, or a nurse deems it

medically necessary. Neither this policy nor Hall’s treatment in the infirmary

violated the Eighth Amendment. Moreover, Hall failed to establish that any

supervisory defendant knew that Hall was being restrained while receiving

treatment. See, e.g., Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)

(holding that, under section 1983, supervisory officials are not liable for actions of

subordinates on any theory of vicarious liability).

      We reject Hall’s argument that the district court erred because it failed to

consider whether defendant Reich failed to intervene in Hall’s restraint. Hall did

not name Reich as a defendant in this cause of action.

      The district court properly granted summary judgment to defendants on

Hall’s Eighth Amendment claims that prison officials (1) adopted policies that

placed him in danger, and (2) failed to protect him from an attack by placing him

in a block with rival gang members. Hall did not establish that any defendant

either knew of or deliberately disregarded an excessive risk to Hall’s safety. See,


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e.g., Farmer v. Brennan, 511 U.S. 825, 835-38 (1994) (neither negligence nor

gross negligence will constitute deliberate indifference); Labatad v. Corrections

Corp. of America, 714 F.3d 1155, 1161 (9th Cir. 2013). Instead, the record reflects

that Hall had previously been housed for months in a locked unit with members of

a rival gang without incident, and he was being transferred by a correctional officer

to another locked unit where rival gang members were also housed when this

attack occurred. As the district court correctly observed, “[L]ike F block [where he

had been housed], CCMP [where he was going], was a locked housing unit where

Mr. Hall would have been locked down for the majority of the day and was

supposed to have had little if any interaction with other inmates on the block at

least for the first month while on that unit.”

      The district court also rightly noted that the cases upon which Hall relies “all

deal with situations where an inmate was placed in general population or in the

same cell with rival gang members,” rendering his authorities materially

distinguishable.

              We reject Hall’s argument that the district court failed to review de

novo the magistrate judge’s report and recommendations. The district judge did

state that it would review for clear error because Hall’s objections to the report

were insufficient to trigger de novo review. We need not address the correctness

of that ruling because the record reflects that the district court held that the


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magistrate’s rulings were correct, and we affirm those rulings of the district

court. Hall therefore received all the benefits of de novo review. We also reject as

unsupported by the record Hall’s contentions that (1) the district court failed to rule

on Hall’s objections to the magistrate judge’s report and recommendations; and (2)

that the magistrate judge failed to rule on one of Hall’s state law claims.

      The district court properly dismissed defendant Kohut for failure to state a

deliberate indifference medical claim. Hall’s disagreement with Kohut’s treatment

choices of medication do not state a colorable Eighth Amendment claim. See

Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004).

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

appointment of counsel, because Hall failed to demonstrate extraordinary

circumstances warranting the appointment of counsel. See, e.g., Palmer v. Valdez,

560 F.3d 965, 970 (9th Cir. 2009).

      The district court did not abuse its discretion in denying Hall’s discovery

motions, because Hall failed to demonstrate that the evidence sought was material.

See Hallet v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (district court did not

abuse discretion when denying motion to compel disclosure of defendants’ internal

policies after finding that material was minimally relevant).

      The district court did not abuse its discretion in vacating a prior sanctions

award. See Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 808 (9th


                                          4                                      18-35149
Cir. 2019) (stating standard of review). Assuming only for the sake of argument

that Hall has standing to appeal the order, the district court vacated the sanctions

because the factual record before the court had materially changed. See Fed. R.

Civ. Proc. 72 (district judge must modify or set aside any magistrate judge order

that is “clearly erroneous”).

      AFFIRMED.




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