NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW J.J. WOLF; R. HANS KRUGER, No. 17-35273

Plaintiffs-Appellants, D.C. No. 1:12-cv-00526-BLW

v.

MEMORANDUM*

IDAHO STATE BOARD OF

CORRECTIONS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding

Submitted June 20, 2019**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Idaho state prisoners Andrew J.J. Wolf and Hans Kruger appeal pro se the

district court’s screening dismissal and summary judgment in their 42 U.S.C.

§ 1983 action alleging constitutional violations stemming from alleged

overcrowding and understaffing at the Idaho State Correctional Institution (“ISCI”)

* 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). and Idaho State Correctional Center (“ISC”). We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205

(9th Cir. 2007) (dismissal under 28 U.S.C. § 1915A); Keenan v. Hall, 83 F.3d

1083, 1088 (9th Cir. 1996) (summary judgment). We affirm.

The district court properly dismissed plaintiffs’ claims alleging retaliation

because they failed to allege facts showing that defendants acted with a retaliatory

intent. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (explaining

requirements of retaliation claims in the prison context).

The district court properly dismissed plaintiffs’ claim alleging overcrowding

because overcrowding “has no constitutional significance standing alone.” Balla v.

Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989) (“Only when

overcrowding is combined with other factors such as violence or inadequate

staffing does overcrowding rise to an eighth amendment violation.”).

The district court properly granted summary judgment on Wolf’s claims

alleging inadequate heating, ventilation, and recreational time at ISCI and

inadequate dayroom space and out-of-cell time at ICC because Wolf failed to raise

a triable dispute as to whether he suffered a deprivation that was, “objectively,

sufficiently serious,” resulting in “the denial of the minimal civilized measure of

life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations and

internal quotation marks omitted).

2 The district court properly granted summary judgment on Wolf’s claim

alleging failure to protect him from inmate assault because Wolf failed to exhaust

prison grievance procedures concerning his claim. See Woodford v. Ngo, 548 U.S.

81, 85, 93-95 (2006) (exhaustion is mandatory and must be done in a timely

manner consistent with prison policies).

The district court properly granted summary judgment on Kruger’s claim

alleging failure to protect him from inmate assault because Kruger failed to raise a

triable dispute as to whether defendants “[knew] of and disregard[ed] an excessive

risk to inmate . . . safety.” Farmer, 511 U.S. at 837.

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

to modify the scheduling order because they failed to show good cause. See

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992)

(standard of review; after entry of pretrial scheduling order, timetable for

amending pleadings may be altered only “upon a showing of ‘good cause’” (citing

Fed. R. Civ. P. 16(b)).

The district court did not abuse its discretion in denying plaintiffs’ renewed

motion for appointment of counsel because plaintiffs failed to show exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (standard

of review; “Generally, a person has no right to counsel in civil actions. However, a

court may under ‘exceptional circumstances’ appoint counsel for indigent civil

3 litigants pursuant to 28 U.S.C. § 1915(e)(1).”).

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

compel discovery because plaintiffs showed no prejudice resulting from the ruling.

See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“[A]

decision to deny discovery will not be disturbed except upon the clearest showing

that the denial of discovery results in actual and substantial prejudice to the

complaining litigant.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion in denying plaintiffs’ motion

for a status hearing conference because plaintiffs showed no prejudice resulting

from the ruling. See Mahon v. Credit Bureau of Placer Cnty. Inc., 171 F.3d 1197,

1200 (9th Cir. 1999) (“[A] district court may abuse its discretion if it refuses to

hear oral argument where a party would suffer unfair prejudice as a result.”).

Plaintiffs have not shown error in the district court’s denial of their motions

to reconsider discovery orders and summary judgment, or to reopen discovery. See

Preminger v. Peake, 552 F.3d 757, 769 (9th Cir. 2008) (describing district courts’

“inherent power to control their dockets” (citation and internal quotation marks

omitted)).

The record does not support plaintiffs’ contention that the district court

granted summary judgment while discovery motions were pending.

AFFIRMED.

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