                                                                               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                             NOT FOR PUBLICATION                                JAN 02 2013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



BYRON EUGENE JOHNSON,                             No. 11-16697

               Plaintiff - Appellant,             D.C. No. 2:05-cv-02123-KJM-
                                                  EFB
  v.

DAVID L. RUNNELS; et al.,                         MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Kimberly J. Mueller, District Judge, Presiding

                           Submitted December 19, 2012 **

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

       California state prisoner Byron Eugene Johnson appeals pro se from the

district court’s judgment following a jury verdict in his 42 U.S.C. § 1983 action

alleging that prison officials violated his constitutional rights. We have




          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Sapp v. Kimbrell, 623

F.3d 813, 821 (9th Cir. 2010) (dismissal for failure to exhaust); Toguchi v. Chung,

391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment); Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A for failure to

state a claim). We affirm.

      The district court properly granted summary judgment on Johnson’s Eighth

Amendment claim against defendant Baillie because Johnson failed to raise a

genuine dispute of material fact as to whether Baillie caused the alleged

constitutional deprivation. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82

(9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute

for purposes of summary judgment.”); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

Cir. 1978) (“The requisite causal connection can be established not only by some

kind of direct personal participation in the deprivation, but also by setting in

motion a series of acts by others which the actor knows or reasonably should know

would cause others to inflict the constitutional injury.”).

      The district court properly dismissed Johnson’s claims against defendants

Wagner and Jackson because Johnson failed to exhaust his administrative remedies

as to the claims against these defendants. See Woodford v. Ngo, 548 U.S. 81, 93-

95 (2006) (requiring proper and timely exhaustion of prisoner claims).


                                           2                                       11-16697
      The district court properly dismissed Johnson’s claims against defendant

Runnels and other supervisory defendants because Johnson failed to allege that any

of these defendants personally participated in any alleged constitutional violations.

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisors are liable for

constitutional violations of subordinates if they “participated in or directed the

violations, or knew of the violations and failed to act to prevent them”).

      The district court did not abuse its discretion in denying Johnson’s motions

for appointment of counsel because Johnson failed to establish exceptional

circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.

2004) (providing standard of review and requirements for appointment of counsel).

      Johnson’s discovery and evidentiary contentions, as well as his contentions

regarding alleged attorney misconduct, are rejected.

      To the extent that Johnson seeks to appeal the district court’s order denying

his motion for a new trial, we lack jurisdiction to review that order. See Fed. R.

App. P. 4(a)(4)(B)(ii). This court instructed Johnson in its July 14, 2011 order that

if he wished to challenge the district court’s ruling on his then pending motion, he

must file an amended notice of appeal within thirty days from entry of the district

court’s ruling, but he failed to do so.

      AFFIRMED.


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