                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 02 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KEVIN ALMY,                                      No.   14-17581

              Plaintiff-Appellant,               D.C. No.
                                                 2:12-cv-00129-HDM-VCF
 v.

BRANDON DAVIS, Correctional Officer              MEMORANDUM*
at LCC; TERRY NELSEN, LCC
Correctional Officer; BRANDT
HALLING, NDOC Correctional Officer;
RUBEN VIDAURRI, WSCC Correctional
Officer; VERONICA MEZA, WSCC
Correctional Officer; KEVIN FANCHER;
JAMES KEENER, Correctional
Officer/Investigator,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                          Submitted February 28, 2018**



      *
             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).
Before:       THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

       Kevin Almy appeals the judgment of the district court in his 42 U.S.C.

§ 1983 action against certain employees of the Nevada Department of Corrections.

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

and remand.

       1. We do not reach Almy’s contention that the district court erred by

dismissing Almy’s first action, Civil No. 3:11-cv-00023-ECR-VPC, without

affording him an opportunity to file an amended complaint, causing him to incur

two filing fees. Almy did not appeal the dismissal of the first action. We therefore

are without appellate jurisdiction to address it. See Smith v. Barry, 502 U.S. 244,

248 (1992) (“Rule 3’s dictates are jurisdictional in nature, and their satisfaction is a

prerequisite to appellate review.”).

       2. The district court did not abuse its discretion by declining to appoint

counsel under 28 U.S.C. § 1915(e)(1). Although Almy was presented with

difficulties in pursuing his case, he did not establish “exceptional circumstances”

warranting appointment of counsel. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

2009). Almy, moreover, did not renew his request during the latter stages of the

litigation.




                                           2
      3. Although Almy contends he did not receive the notice required by Rand

v. Rowland, 154 F.3d 952, 955-56 (9th Cir. 1998) (en banc), and Klingele v.

Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988), the district court found

otherwise, and that finding is not clearly erroneous. The record shows the district

court issued the notice, and Almy concedes he received the defendants’ motion to

dismiss, filed the same day as the Klingele notice.

      4. Almy contends he was denied a fair trial because (1) he was seated more

than 20 feet from the jury; (2) uniformed correctional officers stood behind him

during the trial; (3) he had to wear waist and leg restraints during trial; (4) he was

prohibited from approaching the jury to show them his scars; (5) the defendants

and the court used the word “threatened” to refer to his intent to file administrative

grievances or initiate legal action against corrections employees; and (6) the court

allowed the defense to present evidence of his nine-year-old conviction for

attempted murder to impeach his credibility. Because Almy has not filed copies of

the trial transcript, we cannot meaningfully address these claims. See Syncom

Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (holding that “failure to

provide relevant portions of a transcript may require dismissal of the appeal”).

Almy also contends the district court abused its discretion by denying his motion

for a mistrial with respect to a local radio program that he believes may have


                                           3
influenced jurors. Again, because Almy has not presented a transcript of the

proceedings, we are unable to address this claim of error. Almy’s challenge to the

district court’s denial of his motion for trial transcripts at government expense is

waived because he raises it for the first time in his reply brief. See United States v.

Bohn, 956 F.2d 208, 209 (9th Cir. 1992).

      5. We decline to reach Almy’s contention that the defendants interfered

with his ability to prosecute this action by prison transfers; denying him

photocopying privileges; and limiting his access to evidence, witnesses and

exhibits. Although prisoners have “a right under the First and Fourteenth

Amendments to litigate claims challenging their sentences or the conditions of

their confinement to conclusion without active interference by prison officials,”

Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011), overruled on other

grounds as stated in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015),

Almy did not present this claim in the district court.

      6. Although Almy challenges a number of the district court’s evidentiary

rulings, he has not established an abuse of discretion. See Simula, Inc. v. Autoliv,

Inc., 175 F.3d 716, 726 (1999) (reviewing discovery rulings for an abuse of

discretion).




                                           4
      7. Almy’s challenge to the jury’s decision not to award punitive damages is

without merit. See Runge v. Lee, 441 F.2d 579, 584 (9th Cir. 1971) (“The

determination that appellants’ acts were wanton and malicious was within the

exclusive province of the jury.”).

      8. We vacate the dismissal of Count VII for failure to exhaust

administrative remedies. Under the Prison Litigation Reform Act (PLRA), “[n]o

action shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). The PLRA, however, “does not require

exhaustion when circumstances render administrative remedies ‘effectively

unavailable.’” Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (quoting

Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)); see Ross v. Blake, 136 S.

Ct. 1850, 1859-60 (2016). Almy asserted under penalty of perjury that he was

unable to file an administrative grievance regarding Count VII because his requests

for a sufficient number of grievance forms were denied. CR 94 at 5-7, 21; CR 164

at 2-3, 16. The defendants presented no evidence to the contrary. CR 27 at 7; CR

101 at 1-2; CR 175 at 3. It is therefore undisputed that Almy was not provided

sufficient grievance forms to file an administrative grievance with respect to Count


                                           5
VII, rendering administrative remedies effectively unavailable. See Nunez, 591

F.3d at 1226. Almy was not required to exhaust administrative remedies with

respect to this claim. See Andres, 867 F.3d at 1078.

      9. We also vacate the dismissal of Count XIV. In this claim, Almy alleges

he was denied due process in connection with a disciplinary proceeding against

him, resulting in his being placed in administrative segregation for 43 days.

Although Almy filed a grievance challenging this discipline (grievance #3379),

prison officials rejected it solely because Almy failed to attach a copy of the

underlying disciplinary charges. Almy concedes he did not attach the underlying

charges, but it is undisputed that he was unable to do so solely because he lacked

the financial ability to photocopy them. Prison officials, moreover, were already in

possession of the charges. Under these circumstances, Almy’s administrative

remedies were effectively unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823

(9th Cir. 2010) (“If prison officials screen out an inmate’s appeals for improper

reasons, the inmate cannot pursue the necessary sequence of appeals, and

administrative remedies are therefore plainly unavailable.”); cf. 28 U.S.C.

§ 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil

action or appealing a civil or criminal judgment for the reason that the prisoner has

no assets and no means by which to pay the initial partial filing fee.”).


                                           6
      10. The district court properly dismissed Count XV for failure to exhaust

administrative remedies. See 42 U.S.C. § 1997e(a). Almy could have perfected

his administrative grievances but failed to do so.

      We vacate the dismissal of Counts VII and XIV. We affirm in all other

respects. The case is remanded for proceedings consistent with this disposition.

      AFFIRMED IN PART; VACATED IN PART; REMANDED.




                                          7
