NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCOTT PEASLEY, No. 20-16695

Plaintiff-Appellant, D.C. No. 5:18-cv-03498-LHK

v.

MEMORANDUM*

KATHERINE RIPPBERGER, LVN, San Quentin State Prison,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted July 6, 2022** San Francisco, California

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

David Peasley appeals from the district court’s prescreening order dismissing

his excessive force claim against nurse Katherine Rippberger, from the district

court’s summary judgment in favor of Rippberger on Peasley’s deliberate

* 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). indifference and first amendment retaliation claims, and from the district court’s

orders denying his various discovery requests, entering a stay of discovery, and

denying his motion for appointment of counsel. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

We review de novo a district court’s dismissal of a complaint under 28 U.S.C.

§ 1915A for failure to state a claim upon which relief can be granted. Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Here, the district court properly dismissed

Peasley’s excessive force claim against Rippberger because Rippberger applied no

physical force to Peasley. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.

2003) (stating that an excessive force claim requires “the need for application of

force”), quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992).

We review for an abuse of discretion a district court’s rulings concerning

discovery. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). Here, the district

court did not abuse its discretion in denying Peasley’s various discovery requests or

in entering a temporary stay of discovery because Peasley did not attempt to meet

and confer with Rippberger, Peasley did not diligently pursue discovery and

appeared to be misusing the discovery process, and Peasley’s discovery requests

were not necessary for resolving the opposing motions for summary judgment.

We review de novo a district court’s ruling on cross-motions for summary

judgment. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970

2 (9th Cir. 2011). Here, the district court properly granted summary judgment in favor

of Rippberger on Peasley’s deliberate indifference claim because Peasley failed to

establish that Rippberger was aware of the failure to administer Peasley’s lunchtime

insulin, that Rippberger was aware that Peasley needed a corrective dose of insulin

in the afternoon, or that Rippberger acted below the standard of care once she learned

of Peasley’s need for insulin. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004) (stating that a claim for deliberate indifference under the eighth amendment

requires that a prison official “knows of and disregards an excessive risk to inmate

health and safety”).

The district court also properly granted summary judgment in favor of

Rippberger on Peasley’s first amendment retaliation claim because Peasley failed to

establish that Rippberger took any “adverse action” against Peasley or that any

potential adverse action was “because of” Peasley’s planned testimony against the

California Department of Corrections and Rehabilitation. Rhodes v. Robinson, 408

F.3d 559, 567–68 (9th Cir. 2005) (holding that a first amendment retaliation claim

requires “[a]n assertion that a state actor took some adverse action against an inmate”

and that the adverse action was “because of” protected conduct).

We review for an abuse of discretion a district court’s denial of a motion to

appoint counsel for an indigent civil litigant. Wilborn v. Escalderon, 789 F.2d 1328,

1331 (9th Cir. 1986). Here, the district court did not abuse its discretion in denying

3 Peasley’s motion to appoint counsel because Peasley failed to show that

“exceptional circumstances” justified the appointment of counsel. Rand v. Rowland,

113 F.3d 1520, 1525 (9th Cir. 1997) (stating that a district court has the discretion

to appoint counsel for indigent litigants pursuant to 28 U.S.C. § 1915(d) in

“exceptional circumstances”).

We do not consider arguments raised for the first time on appeal. Raich v.

Gonzales, 500 F.3d 850, 868 (9th Cir. 2007).

AFFIRMED.

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