NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK JESUS ODEN, Sr., No. 19-15052

Petitioner-Appellant, D.C. No. 1:14-cv-00873-LJO-BAM v.

J. ACEBEDO; et al., MEMORANDUM*

Defendants-Appellees,

and

STATE OF CALIFORNIA; ANTHONY

GROUNDS,

Defendants.

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

DERRICK JESUS ODEN, Sr., No. 19-55180

Plaintiff-Appellant, D.C. No. v. 2:17-cv-05639-AG-JPR

J. ACEBEDO; et al.,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees,

and

ANTHONY GROUNDS; STATE OF

CALIFORNIA,

Defendants.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Submitted November 19, 2020** Pasadena, California

Before: LINN,*** RAWLINSON, and FORREST, Circuit Judges.

In this consolidated appeal of actions pending in both the Central and Eastern

District of California, Derrick Oden, a California prisoner, sued several prison

officials (Defendants) for money damages under 42 U.S.C. § 1983. Oden alleged

that Defendants violated his Eighth Amendment rights by acting with deliberate

indifference towards his increased risk for Valley Fever. Both district courts

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

2 concluded that the Defendants were entitled to qualified immunity and dismissed

Oden’s complaints. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Qualified Immunity. “We review whether the officials are entitled to

qualified immunity de novo.” Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir. 2019).

Here, the district courts properly found that the Defendants were entitled to qualified

immunity because the “right to be free from heightened risk of Valley Fever was not

clearly established when the officials acted.” Id. at 1228. Oden’s arguments that

Hines is inapplicable are unpersuasive.

Appointment of Counsel. Oden moved for and was denied appointment of

counsel under 28 U.S.C. § 1915(e)(1) in his case pending in the Central District. We

review the denial of appointed counsel in civil cases for an abuse of discretion. Cano

v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). Courts grant requests for counsel in

civil rights cases only in exceptional circumstances. See Palmer v. Valdez, 560 F.3d

965, 970 (9th Cir. 2009). Here, Oden effectively drafted his own pleadings and made

numerous filings. We find exceptional circumstances are not present and conclude

that the district court did not abuse its discretion.

Appointment of Expert. Oden also moved for and was denied appointment of

an expert witness in his Central District case. The court has discretion to appoint a

neutral expert under Federal Rule of Evidence 706. Again, we conclude the district

court did not abuse its discretion in denying Oden’s request because discovery had

3 not yet been ordered and Oden did not persuasively articulate how an expert would

help him in objecting to the magistrate judge’s Report and Recommendation

regarding Defendants’ motion to dismiss.

AFFIRMED.

4