                                                                               FILED
                           NOT FOR PUBLICATION                                 NOV 22 2016

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



                            FOR THE NINTH CIRCUIT


IVAN LEE MATTHEWS,                               No. 15-17484

              Plaintiff-Appellant,               D.C. No. 3:13-cv-02760-JD

 v.
                                                 MEMORANDUM*
S. PUCKETT; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     James Donato, District Judge, Presiding

                          Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Ivan Lee Matthews, a California state prisoner, appeals pro se from the

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

indifference to safety, excessive force, and retaliation. We have jurisdiction under

28 U.S.C. § 1291. We review de novo. Lemire v. Cal. Dep’t of Corr. & Rehab.,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
726 F.3d 1062, 1074 (9th Cir. 2013) (summary judgment); Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6) for failure

to state a claim). We affirm.

      The district court properly granted summary judgment on Matthews’

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

material fact as to whether defendants Black, Urena, and Bonilla knew of and

disregarded an excessive risk to Matthews’ safety. See Farmer v. Brennan, 511

U.S. 825, 837 (1994) (prison official must know of and disregard an excessive risk

to inmate safety to violate the Eighth Amendment).

      The district court properly granted summary judgment on Matthews’

excessive force claim because Matthews failed to raise a genuine dispute of

material fact as to whether defendants Urena and Bonilla used force “maliciously

and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).

      The district court properly granted summary judgment on Matthews’ First

Amendment retaliation claim because Matthews failed to raise a genuine dispute of

material fact as to whether defendants Black, Urena, and Bonilla took an adverse

action against Matthews because of his protected conduct. See Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004) (setting forth elements of a

retaliation claim in the prison context).


                                            2                                 15-17484
      The district court properly dismissed Matthews’ claims against defendant

Puckett because Matthews failed to state a plausible claim for deliberate

indifference or retaliation. See Farmer, 511 U.S. at 834, 837; Hebbe, 627 F.3d at

341-42 (although pro se pleadings are liberally construed, a plaintiff must still

present factual allegations sufficient to state a plausible claim for relief); Rhodes,

408 F.3d at 567-68.

      The district court did not abuse its discretion by denying Matthews’ motions

to appoint counsel because Matthews did not demonstrate any 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).

      The district court did not abuse its discretion by denying Matthews’ request

for an additional copy of his deposition transcript because Matthews must bear his

own discovery costs. See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.

1998) (standard of review); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989)

(expenditure of public funds on indigent litigants’ discovery fees not authorized by

Congress); see also Fed. R. Civ. P. 30(f)(3) (copy of deposition available to party

or deponent only when reasonable charges paid).

      We do not consider documents, facts, or issues that were not before the


                                            3                                     15-17484
district court. See Andersen v. Cumming, 827 F.2d 1303, 1305 (9th Cir. 1987).

      Matthews’ motion for appointment of counsel, filed on July 5, 2016, is

denied.

      AFFIRMED.




                                        4                                  15-17484
