                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 02 2013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



RAMON MURILLO,                                   No. 11-16874

               Plaintiff - Appellant,            D.C. No. 3:10-cv-00584-JSW

  v.
                                                 MEMORANDUM *
CHARLES LEE DUDLEY, M.D.; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Ramon Murillo, a California state prisoner, appeals pro se from the district

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

violated his Eighth and Fourteenth Amendment rights by circumcising him without




          *
             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).
his consent. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment on Murillo’s

deliberate indifference claim because Murillo failed to raise a genuine dispute of

material fact as to whether defendants knew or had reason to know that Murillo did

not consent to the circumcision. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)

(standard for evaluating a claim of deliberate indifference); see also Toguchi, 391

F.3d at 1060 (medical malpractice or negligence is insufficient to establish

deliberate indifference under the Eighth Amendment).

      The district court properly granted summary judgment on Murillo’s

excessive force claim because Murillo failed to raise a genuine dispute of material

fact as to whether the circumcision was performed maliciously and sadistically to

cause harm. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (standard for

evaluating a claim of excessive force).

      The district court properly dismissed Murillo’s Fourteenth Amendment

claim that he was circumcised without his consent as barred by the doctrine of res

judicata based on the judgment in his previous state court action. See Brodheim v.

Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (providing the standard for claim

preclusion under California law); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1143


                                          2                                    11-16874
(9th Cir. 2004) (a federal court relies on “the preclusion law of the state court that

rendered the earlier judgment or judgments to determine whether subsequent

federal litigation is precluded”).

      The district court did not abuse its discretion by denying Murillo’s motion to

appoint counsel because Murillo failed to show 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).

      Murillo’s contentions concerning the district court’s sua sponte grant of

summary judgment and his preservation of federal jurisdiction are unpersuasive.

      We grant Murillo’s motion to file a substitute reply brief, and we instruct the

Clerk to file the reply brief submitted on October 5, 2012.

      AFFIRMED.




                                           3                                     11-16874
