                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 21 2013

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




                             FOR THE NINTH CIRCUIT



RONALD REED,                                     No. 11-15651

               Plaintiff - Appellant,            D.C. No. 2:05-cv-00060-JAM-
                                                 KJN
  v.

B. WILLIAMS; et al.,                             MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       California state prisoner Ronald Reed appeals pro se from the district court’s

judgment in his 42 U.S.C. § 1983 action alleging that prison officials were

deliberately indifferent to his serious medical needs and knowingly failed to




          *
             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).
protect him from attack by another inmate. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo summary judgment. Toguchi v Chung, 391 F.3d

1051, 1056 (9th Cir. 2004). We review for an abuse of discretion a district court’s

formulation of jury instructions, and de novo whether a jury instruction misstates

the law. Wall Data Inc., v. Los Angeles Cnty. Sheriff’s Dep’t, 447 F.3d 769, 784

(9th Cir. 2006). We affirm.

      The district court properly granted summary judgment on Reed’s deliberate

indifference claim because Reed failed to raise a genuine dispute of material fact as

to whether defendant Williams knew of and disregarded an excessive risk to his

health. See Toguchi, 391 F.3d at 1057 (explaining that prison officials act with

deliberate indifference only if they know of and disregard an excessive risk to an

inmate’s health).

      The district court did not abuse its discretion in its formulation of the

instruction concerning the credibility of witnesses because, contrary to Reed’s

contention, the instruction was not misleading. See Wall, 447 F.3d at 784 (finding

no error where challenged jury instructions “fairly and adequately covered the

issues presented, correctly stated the law, and were not misleading”).

      We do not consider Reed’s other challenges to the district court’s jury

instructions because Reed failed to object to them before the district court, and our


                                           2                                      11-15651
review of the record reveals that there was no plain error. See Hunter v. County of

Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011) (“If a party does not properly

object to jury instructions before the district court, we may only consider ‘a plain

error in the instructions that . . . affects substantial rights.’” (citation omitted)); cf.

Clem v. Lomeli, 566 F.3d 1177, 1180-82 (9th Cir. 2009) (discussing the

appropriateness of a “failure to act” instruction where the evidence showed that the

prison official failed to take any action in response to the inmate’s cry for help).

       The district court did not abuse its discretion by denying Reed’s request for

default judgment and sanctions because defendant Moore did not commit any

discovery violations, and there was no clear evidence of perjury. See Primus Auto.

Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (setting forth the

standard of review, discussing the bad faith requirement for imposing sanctions

under a court’s inherent power, and explaining that the requirement sets a “high

threshold”). We do not consider Reed’s challenge to the district court’s failure to

enter default judgment or impose sanctions against defendant Frates because Reed

raises this challenge for the first time on appeal. See Padgett v. Wright, 587 F.3d

983, 985 n.2 (9th Cir. 2009) (per curiam).

       In light of the above, we do not consider defendants Moore and Frates’s

argument in the alternative that Reed failed to properly exhaust his administrative


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remedies.

      AFFIRMED.




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