NOT FOR PUBLICATION MAY 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY TYREE BROWN, No. 09-35945
Plaintiff - Appellant, D.C. No. 3:08-cv-05326-RBL
DEVON SCHRUM; et al.,
RICHARD MORGAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
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).
Gregory Tyree Brown, a Washington state prisoner, appeals pro se from the
district court's summary judgment in his 42 U.S.C. § 1983 action. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Jones v. Blanas, 393 F.3d 918
, 926 (9th Cir. 2004). We affirm in part, vacate in part, and remand.
The district court properly granted summary judgment as to the six served
Care Review Committee members because Brown failed to raise a genuine issue of
material fact as to whether they knew of and disregarded his serious medical need
in denying exploratory hand surgery. See Farmer v. Brennan, 511 U.S. 825
(1994) (to be deliberately indifferent, a prison official must "know of and
disregard an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference").
Brown first argued in his objections to the Magistrate Judge's Report and
Recommendations that his deliberate indifference and due process claims against
the non-Care Review Committee defendants were tolled while he was exhausting
the administrative grievance process. See Brown v. Valoff, 422 F.3d 926
, 943 (9th
Cir. 2005) (instructing that the applicable statute of limitations must be tolled while
a prisoner completes the mandatory grievance process). On this record, it is not
clear whether the district court exercised its discretion to consider Brown's
[End Page 2 09-35945]
arguments regarding tolling. See Brown v. Roe, 279 F.3d 742
, 745 (9th Cir. 2002)
(district court abused its discretion in failing to consider pro se prisoner's equitable
tolling argument raised for the first time in objection to magistrate judge's report
and recommendations); United States v. Howell, 231 F.3d 615
, 621-22 (9th Cir.
2000) ("[I]n making a decision on whether to consider newly offered evidence, the
district court must actually exercise its discretion, rather than summarily accepting
or denying the motion."). We vacate the judgment as to these defendants, and we
remand to allow the district court the opportunity to exercise its discretion.
The district court did not abuse its discretion in dismissing without prejudice
the unserved defendants, where Brown's motion for an extension of scheduling
deadlines was untimely, and he was given notice regarding his responsibilities to
serve each named defendant. See Townsel v. Cnty. of Contra Costa, Cal., 820 F.2d 319
, 320 (9th Cir. 1987) (setting forth standard of review and good cause exception
for untimely service).
The district court properly exercised its discretion by denying Brown's
motion for appointment of counsel because Brown failed to demonstrate
exceptional circumstances. See Palmer v. Valdez, 560 F.3d 965
, 967, 970 (9th Cir.
2009) (not an abuse of discretion to deny appointed counsel where incarcerated
plaintiff alleged that incarceration hampered discovery).
[End Page 3 09-35945]
The district court did not abuse its discretion by denying Brown's motions to
compel discovery, stay defendant's motion for summary judgment, and reopen
discovery because the information sought from one defendant was unknown to her
and other information sought would not preclude summary judgment. See Klingele
v. Eikenberry, 849 F.2d 409
, 412 (9th Cir. 1988) ("To determine whether discovery
would have been fruitless, we look to the legal theories that might sustain the
The district court did not abuse its discretion by declining to impose Rule 11
sanctions because it found the defendant's response to Brown's motion for an
extension of time, although likely erroneous, was the result of understandable error
and not for any improper purpose. See Holgate v. Baldwin, 425 F.3d 671
676-77 (9th Cir. 2005).
We have reviewed Brown's remaining contentions and conclude they are
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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