                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 20 2013

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




                             FOR THE NINTH CIRCUIT



MICHAEL VICTORY,                                 No. 11-16187

               Plaintiff - Appellant,            D.C. No. 1:05-cv-01578-LJO-DLB

  v.
                                                 MEMORANDUM *
ARNOLD SCHWARZENEGGER,
Governor; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       California state prisoner Michael Victory appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291. We review de novo summary judgment, Barnett v. Centoni, 31 F.3d 813,

815 (9th Cir. 1994) (per curiam), and a determination that a prisoner failed to

exhaust administrative remedies under the Prison Litigation Reform Act, Wyatt v.

Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). We affirm.

      The district court properly granted summary judgment because Victory

failed to establish a genuine dispute of material fact as to whether defendants

consciously disregarded Victory’s serious medical needs by denying his requests

for an egg crate mattress, a lower tier cell, an MRI, and a bone scan. See Toguchi

v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing objective and subjective

elements of deliberate indifference claim); see also id. at 1059-60 (difference of

opinion concerning the appropriate course of treatment does not amount to

deliberate indifference).

      The district court properly dismissed Victory’s claims concerning

defendants’ alleged interference with his prescription medicine becuase Victory

failed to exhaust administrative remedies with respect to these claims. See

Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that “proper exhaustion”

is mandatory and requires adherence to administrative procedural rules); Sapp v.

Kimbrell, 623 F.3d 813, 823-24 (9th Cir. 2010) (futility exception to the




                                          2                                       11-16187
administrative exhaustion requirement requires that the inmate establish “that he

actually filed a grievance or grievances”).

      The district court did not abuse its discretion in denying Victory’s multiple

requests for appointment of counsel because Victory failed to demonstrate

exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

2009) (setting forth standard of review and the exceptional circumstances

requirement).

      The district court did not abuse its discretion in denying Victory’s motion to

compel because the motion was untimely and Victory failed to establish good

cause to excuse his late filing. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,

1084, 1093 (9th Cir. 2003) (setting forth standard of review and allowing reversal

only with “the clearest showing that the denial of discovery results in actual and

substantial prejudice to the complaining litigant”).

      Victory’s motion for judicial notice, filed on August 12, 2011, is granted.

      AFFIRMED.




                                           3                                   11-16187
