The opinion
NOT FOR PUBLICATION FILED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.
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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.
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