NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GUADALUPE AMEZQUITA, No. 21-56059

Plaintiff-Appellant, D.C. No. 3:19-cv-01461-AJB-KSC v.

HOUGH; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted June 20, 2023** San Francisco, California

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Jose Amezquita appeals pro se from the district court’s summary judgment

for California Department of Corrections and Rehabilitation Correctional Officers

Dystery Hough and Robert Downs and Associate Warden Francisco Armenta

(Defendants). We have jurisdiction under 28 U.S.C. § 1291. We review de novo

* 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). the district court’s summary judgment and its determination that a prisoner failed to

exhaust administrative remedies. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004); Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We review for an

abuse of discretion orders concerning discovery and appointment of counsel under

28 U.S.C. § 1915. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1469

(9th Cir. 1992); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We affirm.

Amezquita alleges that Defendants acted with deliberate indifference in

violation of the Eighth Amendment while he was an inmate when they ignored his

threat of suicide for placing him in an administrative segregation unit, the “C-Yard.”

Amezquita states that placement in the C-Yard would endanger his life as he was

suffering from suicidal thoughts, paranoia, and claustrophobia, and that he was

placed there in retaliation for refusing to act as a “snitch.” He alleges that the officers

knew he would be suicidal if he were placed in the C-Yard, but the officers ignored

him as they escorted him to the C-Yard, where Amezquita says that he self-harmed.

Amezquita sued Defendants under 42 U.S.C. § 1983, arguing that Defendants

were aware of his risk of suicide but were deliberately indifferent to his serious

medical needs when he cut himself. The district court adopted the magistrate judge’s

report and recommendation to grant Defendants’ motion for summary judgment, and

deny Amezquita’s request for additional discovery and appointment of counsel.

Amezquita asks us to overturn the summary judgment, arguing that he exhausted his

2 administrative remedies and/or they were unavailable, the court erred in granting

summary judgment without a jury trial, and the court should have granted him

assistance of counsel and allowed him more time for discovery.

Amezquita first argues that he exhausted administrative remedies before filing

this action, as required under the Prison Litigation Reform Act. 42 U.S.C. §

1997e(a). In this case, he needed to have utilized the California prison system’s

grievance process by submitting a Form 602 within 30 days of the contested action.

Cal. Code Regs. tit. 15 §§ 3084-3085 (2019) (repealed June 1, 2020). In the

alternative, he argues that administrative remedies were effectively unavailable to

him as he feared retaliation from prison officers if he chose to file a Form 602.

A defendant bears the burden to prove that the prison had “an available

administrative remedy” and that “the prisoner did not exhaust that available

remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). After the

defendant makes such a showing, the plaintiff bears the burden of production to

establish that “there is something in his particular case that made the existing and

generally available administrative remedies effectively unavailable to him.” Id.

Defendants met their burden by providing non-speculative evidence, including

through testimonies and physical evidence indicating that they had no record of 602

forms filed by Amezquita. Amezquita asserts that the forms must have been lost or

deliberately misplaced, and that he is excused from exhaustion because he feared

3 retaliation from prison officials if he had filed them. McBride v. Lopez, 807 F.3d

982, 987 (9th Cir. 2015) (holding that administrative remedies are unavailable for

fear of retaliation if an inmate shows he (1) actually believed officials would retaliate

against him, and (2) his belief was objectively reasonable).

We assume arguendo that Amezquita did exhaust his claims, or that they were

unavailable to him. However, we hold that summary judgment was properly granted

to Defendants on the merits, as Amezquita failed to produce specific facts beyond

his pleadings that puts Defendants’ evidence into dispute. T.W. Elec. Serv. v. Pacific

Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (to preclude summary

judgment, a party may not rest on allegations in his pleadings but must set forth

specific facts showing that there is a genuine issue for trial). First, Defendants

produced time-stamped records and sworn declarations showing how Officers

Hough and Downs, whom Amezquita alleges escorted him to the C-Yard, were not

actually present at work at the time. Second, Amezquita’s own testimony indicates

that his statements to Defendants were much vaguer than admitting he would kill

himself if put into C-Yard; rather, he told Armenta that “something is going to

happen to me” if he is sent to C-Yard. From these pleadings and statements alone,

Amezquita has not shown that Defendants were aware of and disregarded an

excessive risk to his health and safety. Hamby v. Hammond, 821 F.3d 1085, 1092

(9th Cir. 2016). The district court did not err in holding that no reasonable jury could

4 conclude that Defendants were subjectively aware of and failed to respond to

Amezquita’s suicide risk. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Amezquita contends that the district court also erred in not appointing counsel

for him as a pro se litigant. Though Amezquita may face challenges litigating his

case pro se, it is within a district court’s discretion whether to appoint counsel in a §

1983 action and whether “exceptional circumstances” exist to do so. U. S. ex rel.

Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). Here, the district court acted

within its discretion as Amezquita has demonstrated a general ability to articulate

his claims throughout his case and there is not a likelihood of success on the merits.

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).

Amezquita argues that he should have been allowed additional time to

complete discovery, considering his pro se status, particularly during the COVID-

19 pandemic. However, the district court has broad discretion in deciding whether

to permit additional discovery and its decision will not be disturbed “except upon

the clearest showing that the denial of discovery results in actual and substantial

prejudice.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). The

district court did not abuse its discretion here, as Amezquita has not described how

additional evidence of video surveillance has a reasonable probability of showing

how the ultimate outcome of the court’s decision would be different. Id.

AFFIRMED.

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