                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 3 2015

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



                            FOR THE NINTH CIRCUIT


ANDRE DREW,                                      No. 13-17113

              Plaintiff - Appellant,             D.C. No. 4:10-cv-00315-BGM

  v.
                                                 MEMORANDUM*
CRAIG APKER,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                Bruce G. Macdonald, Magistrate Judge, Presiding**

                           Submitted January 21, 2015***

Before:       CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Federal prisoner Andre Drew appeals pro se from the district court’s

judgment following a bench trial in his action under Bivens v. Six Unknown Named



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
       ***   The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.

§ 1291. We review de novo the district court’s conclusions of law and for clear

error its findings of fact. Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d 912,

915 (9th Cir. 2005). We affirm.

      After reviewing the record, we cannot say that the district court clearly erred

by concluding that the evidence was insufficient to establish that Drew’s gastritis

and other gastrointestinal ailments were serious medical conditions. See Fed. R.

Civ. P. 52(a)(6) (“Findings of fact . . . must not be set aside unless clearly

erroneous, and the reviewing court must give due regard to the trial court’s

opportunity to judge the witnesses’ credibility.”); Anderson v. Bessemer City, 470

U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of appeals may not

reverse even though convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.”); see also McGuckin v. Smith, 974 F.2d

1050, 1059-60 (9th Cir. 1992) (defining a serious medical condition for purposes

of an Eighth Amendment violation), overruled on other grounds by WMX Techs.,

Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

      The district court did not abuse its discretion by keeping discovery closed


                                            2                                    13-17113
after appointing counsel to assist Drew at trial when fact discovery had been closed

for nearly five months and Drew did not seek an extension of time to conduct

additional discovery outside the discovery period set forth in the scheduling order.

See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (noting the

district court’s broad discretion in discovery matters); see also Fed. R. Civ.

P. 16(b)(4) (“A schedule may be modified only for good cause and with the

judge’s consent.”).

      We reject Drew’s contentions concerning the trial court’s alleged restriction

on his ability to reference defendant’s criminal conduct.

      AFFIRMED.




                                           3                                     13-17113
