                                                                            FILED
                             NOT FOR PUBLICATION                             AUG 02 2013

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




                             FOR THE NINTH CIRCUIT



JAMES L. JEFFERSON,                               No. 12-17003

               Plaintiff - Appellant,             D.C. No. 2:10-cv-00340-MCE-
                                                  CMK
  v.

J.R. WEAVER, Correctional Counselor,              MEMORANDUM *
Vacaville; DOOLEY, C/O/ Property
Officer,

               Defendants - Appellees.



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

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       California state prisoner James L. Jefferson appeals pro se from the district

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

Amendment violations and other claims. 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, Conlon v. United States, 474 F.3d 616, 621 (9th Cir.

2007), and we affirm.

      The district court properly granted summary judgment on the Jefferson’s

Eighth Amendment claim because Jefferson failed to raise a genuine dispute of

material fact as to whether defendants endangered his safety based on his

transgendered or HIV-positive status. See id. at 621, 624 (unanswered requests for

admission may be relied on as the basis for granting summary judgment); see also

Farmer v. Brennan, 511 U.S. 825, 833-34, 837 (1994) (setting forth elements of

Eighth Amendment claim); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586, n. 11 (1986) (averments in a pleading are not sufficient to create a

triable dispute of fact for purposes of defeating summary judgment).

      The district court did not abuse its discretion in denying Jefferson’s requests

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

2009) (setting forth standard of review and “exceptional circumstances”

requirement for appointment of counsel).

      Jefferson’s contentions regarding the district court’s alleged failure to allow

him to present evidence in support of his claims, and the defendants’ alleged

retaliatory conduct during this litigation, are unpersuasive.

      We treat Jefferson’s successive “opening brief” submitted on December 26,


                                           2                                    12-17003
2012 as his reply brief, and consider the arguments and exhibits attached to the

same in light of Jefferson’s pro se status. The Clerk shall file the brief.

      AFFIRMED.




                                           3                                  12-17003
