                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 03 2014

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



                            FOR THE NINTH CIRCUIT


MICHAEL SHAW FAUSETT,                            No. 11-16022

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01724-RLH-
                                                 VPC
  v.

LEBLANC, Registered Nurse; KELLY                 MEMORANDUM*
MARTINEZ, Registered Nurse; NALE
BORU, Doctor; GALLOWAY, Doctor;
NASEER, Doctor,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Roger L. Hunt, Senior District Judge, Presiding

                     Argued and Submitted December 5, 2013
                            San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       California state prisoner Michael Shaw Fausett appeals from the district

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

deliberate indifference to his post-surgical medical needs. We have jurisdiction


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051,

1056 (9th Cir. 2004), and we affirm.

        Because the facts and circumstances of this case are well known to the

parties and were fully aired during oral argument, we need not repeat them in detail

here.

        The district court properly granted summary judgment because Fausett failed

to raise a genuine dispute of material fact as to whether defendants’ treatment of

Fausett’s medical needs following his spinal fusion surgery constituted deliberate

indifference. See id. at 1056-57 (prison officials act with deliberate indifference

only if they know of and disregard an excessive risk to inmate health; a difference

of opinion concerning the appropriate course of treatment does not amount to

deliberate indifference). We note that although the prison physician’s orders did

include a walker for use in-house and a wheelchair for movement across longer

distances, neither Fausett’s discharge orders from the hospital nor his doctor’s

orders recommended either a walker or a wheelchair. The decision not to provide

Fausett with Valium as prescribed, but instead to provide substitute medicine along

with other pain medication, did not constitute deliberate indifference.

        The district court did not abuse its discretion by denying Fausett’s motion to

amend his complaint, which was filed after discovery was closed. See Ascon


                                          -2-
Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (leave to amend

need not be granted where amendment of the complaint would cause the opposing

party undue prejudice or create undue delay).

      The district court did not abuse its discretion in denying Fausett’s motion for

appointment of counsel because Fausett 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).

      The district court did not abuse its discretion in denying Fausett’s motion to

appoint an expert because Fausett’s claims did not involve complex issues or

evidence. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d

1065, 1070 (9th Cir. 1999) (appointment of expert is reviewed for abuse of

discretion).

      Fausett’s contentions regarding alleged procedural errors by the district

court involving, inter alia, the use of a magistrate judge have no merit. All

substantive decisions involving Fausett’s case were made by District Court Judge

Roger L. Hunt, not Magistrate Judge Valerie P. Cooke.

      AFFIRMED.




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