                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          OCT 20 2014

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

DENNIS LAMAR JAMES, Jr.,                         No. 12-16371

              Plaintiff - Appellant,             D.C. No. 3:10-cv-04009-SI

  v.
                                                 MEMORANDUM*
J. PUGA; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                      Argued and Submitted October 6, 2014
                            San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

       Dennis Lamar James, Jr. appeals the district court’s order granting summary

judgment to all defendants on James’s excessive force claims and his Fourth

Amendment claims brought under 42 U.S.C. § 1983. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I

      James argues that the district court did not comply with the requirements of

Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). Under Rand, the district

court bears an “obligat[ion] to advise prisoner pro per litigants of Rule 56

requirements.” Rand, 154 F.3d at 956 (quoting Klingele v. Eikenberry, 849 F.2d

409, 411-412 (9th Cir. 1988)). Here, the district court mailed a Rand notice, but it

was returned from the prison as undeliverable. No new notice was sent even

though James had promptly provided notice of change of address.

      However, Rand does not apply to this case because the record indicates that

by the time the defendants filed their summary judgment motions, James was no

longer incarcerated. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986)

(holding that notice of Rule 56 requirement is not required for non-incarcerated pro

se litigants). Therefore, there was no Rand error.

                                          II

      The decision to appoint counsel for pro se litigants under 28 U.S.C. §

1915(e)(1) “is within the sound discretion of the trial court and is granted only in

exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

(9th Cir. 2004) (citation and internal quotation marks omitted). When determining

whether exceptional circumstances are present, a court must consider “the


                                           2
likelihood of success on the merits as well as the ability of the petitioner to

articulate his claims pro se in light of the complexity of the legal issues involved.”

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted).

      The district court did not abuse its discretion in concluding that James had

not shown he was faced with exceptional circumstances. James did not allege any

facts in his requests for counsel supporting his likelihood to succeed on the merits,

and the case did not present complex factual or legal theories.

                                           III

      We decline to reach the remainder of the arguments made by James because

they were raised for the first time on appeal. Cold Mountain v. Garber, 375 F.3d

884, 891 (9th Cir. 2004). Accordingly, we affirm the grant of summary judgment.1



      AFFIRMED.




      1
          Plaintiff-Appellant’s Motion to Take Judicial Notice is granted.

                                           3
