                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 19 2012

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




                             FOR THE NINTH CIRCUIT



LAFONZO TURNER,                                  No. 11-16881

               Plaintiff - Appellant,            D.C. No. 2:09-cv-00117-WBS-
                                                 KJN
  v.

SACRAMENTO COUNTY JAIL; JOHN                     MEMORANDUM *
McGINNESS, Sheriff,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       California state prisoner Lafonzo Turner appeals pro se from the district

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

subjected to excessive force while a pretrial detainee at the Sacramento County


          *
             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).
Jail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo summary

judgment, Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004), and for an abuse of

discretion the denial of leave to amend, Caswell v. Calderon, 363 F.3d 832, 836

(9th Cir. 2004). We affirm.

      The district court properly granted summary judgment because Turner failed

to raise a genuine dispute of material fact as to whether he was in the custody of

defendants when the alleged incident occurred. See Franklin v. Murphy, 745 F.2d

1221, 1235 (9th Cir. 1984) (to defeat summary judgment, a pro se litigant must

present “significant probative evidence” to rebut that of defendants (citation and

internal quotation marks omitted)). Moreover, Turner failed to raise a triable

dispute as to whether any incident of alleged excessive force was the product of an

official custom or practice or failure to train. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978).

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

file a second amended complaint under Fed. R. Civ. P. 15(a). See Lockheed Martin

Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (setting forth

factors regarding whether to permit amendment).

      The district court did not abuse its discretion in denying Turner’s requests

for appointment of counsel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.


                                           2                                     11-16881
1991) (setting forth standard of review and requiring “exceptional circumstances”

for the appointment of counsel).

      Turner’s contentions that the district court erred in denying his request for an

injunction against a non-party and in failing to give adequate notice are

unpersuasive.

      Turner’s motion to supplement the pleadings is denied.

      AFFIRMED.




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