                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 22 2010

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




                             FOR THE NINTH CIRCUIT



JACK HUBERT HUMMER,                              No. 09-16266

               Plaintiff - Appellant,            D.C. No. 4:07-cv-00211-DCB

  v.
                                                 MEMORANDUM *
DORA B. SCHRIRO, Director, ADOC; et
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       Arizona state prisoner Jack Hubert Hummer appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging that prison

officials’ failure to approve recommended cataract surgery amounted to deliberate


          *
             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).
indifference. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s summary judgment ruling, Lopez v. Smith, 203 F.3d 1122, 1131

(9th Cir. 2000) (en banc), and for abuse of discretion the district court’s denial of

appointed counsel, Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986),

and we affirm.

      The district court properly granted summary judgment because Hummer

failed to present evidence showing that the defendants’ denial of cataract surgery in

his right eye has caused or will cause further injury, or that the defendants knew of

other serious pain or medical problems caused by Hummer’s cataract. See Clem v.

Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009) (defendant must have knowledge of a

substantial risk of serious harm to show deliberate indifference); Shapley v. Nev.

Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam) (a

delay in medical treatment must lead to further injury to support a claim of

deliberate indifference).

      The district court did not abuse its discretion by denying Hummer’s request

for counsel because this case does not present “exceptional circumstances.” See

Wilborn, 789 F.2d at 1331 (district court may designate counsel to represent an

indigent civil litigant in “exceptional circumstances,” a standard that requires an




                                           2
evaluation of the likelihood of success on the merits and the complexity of the

issue involved).

       We do not consider Hummer’s contentions raised for the first time on

appeal. See Travelers Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d

1142, 1146 (9th Cir. 2008).

       We deny as moot the defendants’ motion to strike portions of Hummer’s

reply brief.

       AFFIRMED.




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