                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 25 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PAUL FREE,                                      No. 18-17226

                Plaintiff-Appellant,            D.C. No. 1:17-cv-00159-AWI-JLT

 v.
                                                MEMORANDUM*
NADER PEIKAR, Facility Doctor at USP
Atwater; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                          Submitted September 18, 2019**

Before:      FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

      Former federal prisoner Paul Free appeals pro se from the district court’s

summary judgment in his action brought under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.


      *
             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).
§ 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)

(en banc). We affirm.

      The district court properly granted summary judgment because Free failed to

exhaust administrative remedies and failed to raise a genuine dispute of material

fact as to whether administrative remedies were effectively unavailable. See Ross

v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (describing the limited circumstances

under which administrative remedies are unavailable and exhaustion is excused);

Booth v. Churner, 532 U.S. 731, 738-41 (2001) (inmate seeking money damages

not offered through administrative grievance mechanisms must still complete the

grievance process); see also Albino, 747 F.3d at 1171 (explaining that “if feasible,

disputed factual questions relevant to exhaustion should be decided at the very

beginning of the litigation”).

      The district court did not abuse its discretion in denying Free’s request to

subpoena prison witnesses because Free has not demonstrated prejudice as a result

of the district court’s ruling. See Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014,

1018 (9th Cir. 2011) (setting forth the standard of review and explaining that the

district court’s evidentiary ruling will be upheld unless it was “manifestly

erroneous and prejudicial” (citation and internal quotation marks omitted)).

      We reject as unsupported by the record Free’s alternate contention that he

was excused from exhaustion based on the prison’s responses to the pre-November


                                          2                                    18-17226
2015 grievances.

      Free’s request for appointment of counsel, set forth in his opening brief, is

denied.

      AFFIRMED.




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