                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 11 2012

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




                             FOR THE NINTH CIRCUIT



WALTER L. COLE,                                  No. 09-16337

               Plaintiff - Appellant,            D.C. No. 2:04-CV-02735-MCE-
                                                 EFB
  v.

SWOOP, Officer; et al.,                          MEMORANDUM *

               Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       California state prisoner Walter L. Cole appeals pro se from the district

court’s judgment as a matter of law in his 42 U.S.C. § 1983 action alleging

deliberate indifference to his 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 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).
§ 1291. We review de novo, Torres v. City of Los Angeles, 548 F.3d 1197, 1205

(9th Cir. 2008), and we affirm.

      The district court properly granted judgment as a matter of law because,

based on the evidence presented at trial, no reasonable juror could find that

appellees were deliberately indifferent to Cole’s knee and asthma conditions. See

id. (judgment as a matter of law is proper “‘if no reasonable juror could find in the

non-moving party’s favor’” (citation omitted)); Toguchi v. Chung, 391 F.3d 1051,

1057, 1060 (9th Cir. 2004) (deliberate indifference is a “high legal standard” and

prison officials act with deliberate indifference only if they know of and disregard

an excessive risk to the prisoner’s health and safety); Franklin v. Oregon, 662 F.2d

1337, 1344 (9th Cir. 1981) (“A difference of opinion between a prisoner-patient

and prison medical authorities regarding treatment does not give rise to a § 1983

claim.”).

      The district court did not abuse its discretion in denying Cole’s motions for

appointment of counsel because Cole 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 Cole’s request to


                                          2                                     09-16337
appoint an expert witness on his behalf because Cole failed to show that it was

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

1065, 1071 (9th Cir. 1999) (setting forth standard of review and noting that district

court has discretion to appoint an expert under Fed. R. Evid. 706(a)); see also

Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (per curiam) (in forma pauperis

statute, 28 U.S.C. § 1915, does not authorize waiver of fees or expenses for an

indigent’s witnesses).

      Cole’s remaining contentions, including those regarding appellees’ motions

in limine, are unpersuasive.

      AFFIRMED.




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