                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 28 2014

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



                            FOR THE NINTH CIRCUIT


SAMMY R. QUAIR, Sr.,                             No. 13-16483

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02293-JAM-
                                                 CKD
  v.

GERTZ, Sheriff,                                  MEMORANDUM*

              Defendant - Appellee.



SAMMY R. QUAIR, Sr.,                             No. 13-17233

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02294-KJM-
                                                 KJN
  v.

KORY HONEA; et al.,

              Defendants - Appellees.


                   Appeals from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding
                   Kimberly J. Mueller, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

      California state prisoner Sammy R. Quair, Sr., appeals pro se from the

district court’s summary judgments in his 42 U.S.C. § 1983 actions alleging Eighth

Amendment, access-to-courts, retaliation, and conspiracy claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Brodheim v. Cry, 584

F.3d 1262, 1267 (9th Cir. 2009). We affirm in part, vacate in part, and remand.

      In No. 13-16483, we affirm summary judgment for Gertz because Quair

failed to raise a genuine dispute of material fact as to whether Gertz knew of a

substantial risk of serious harm to Quair from an assault by his cellmate. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that “a prison official

cannot be found liable under the Eighth Amendment . . . unless the official knows

of and disregards an excessive risk to inmate . . . safety”); see also Starr v. Baca,

652 F.3d 1202, 1207-08 (9th Cir. 2011) (explaining supervisory liability under

§ 1983); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)

(the Eighth Amendment deliberate indifference standard also applies to pretrial

detainees).



          **
             The panel unanimously concludes the cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           2                           13-16483 & 13-17233
      However, we vacate in part and remand to allow Quair to file a first

amended complaint. See Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir.

2013) (explaining that a district court’s order granting summary judgment

“necessarily entails” a denial of a request for leave to amend, even if the district

court did not expressly rule on the request, and concluding that it was an abuse of

discretion to deny a pro se litigant leave to amend to name the correct defendants);

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth

standard of review).

      In No. 13-17233, Quair alleged in his complaint that grievances and inmate

request slips were needed to establish his exhaustion of administrative remedies for

the purposes of filing Quair v. Gertz, 2:11-cv-02293-JAM-CKD. For the first time

on appeal, Quair contends that he needed copies of grievances and inmate request

slips to litigate his action against Gertz, including investigating other potential

defendants and claims. While arguments that are not raised below are generally

waived on appeal, this court has discretion to consider newly-raised arguments to

prevent manifest injustice. See Retail Flooring Dealers of Am., Inc., v. Beaulieu of

Am., LLC, 339 F.3d 1146, 1150 n.5 (9th Cir. 2003) (“[A]n appellate court can

review an issue not raised nor objected to prior to appeal if necessary to prevent

manifest injustice.”). Exercising that discretion, we vacate and remand to the


                                            3                           13-16483 & 13-17233
district court for consideration of Quair’s newly-raised argument as it relates to his

access-to-courts and retaliation claims.

      However, we affirm the judgment as to Quair’s conspiracy claim because

Quair failed to raise a triable dispute as to whether defendants conspired to deny

him access to the courts. See Harris v. Roderick, 126 F.3d 1189, 1195-96 (9th Cir.

1997) (requirements of § 1983 conspiracy claim); see also Taylor v. List, 880 F.2d

1040, 1045 (9th Cir. 1989) (conclusory allegations are insufficient to defeat

summary judgment).

      Additionally, the district court did not abuse its discretion in denying Quair’s

motion for appointment of counsel because Quair did not demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and explaining the exceptional circumstances

requirement).

      We reject Quair’s contentions in No. 13-16483 and No. 13-17233 that the

district court abused its discretion in denying his request for in pro per privileges at

the jail’s law library, and his arguments regarding Rand notice.

      We strongly suggest that the district court consider consolidating these

actions on remand.




                                            4                           13-16483 & 13-17233
      In sum, in No. 13-16483, we remand to the district court to allow Quair to

file a first amended complaint. In No. 13-17233, we remand Quair’s access-to-

courts and retaliation claims to the district court to consider in light of Quair’s

newly-raised argument on appeal.

      Appellees shall bear the costs on appeal.

      In No. 13-16483, AFFIRMED in part, VACATED in part, and

REMANDED.

      In No. 13-17233, AFFIRMED in part, VACATED in part, and

REMANDED.




                                            5                           13-16483 & 13-17233
