Aaron Van Neubarth v. Collete Peters

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2021
• Docket: 20-35539
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AARON VAN NEUBARTH, No. 20-35539

Plaintiff-Appellant, D.C. No. 6:18-cv-01730-AC

v. MEMORANDUM* COLLETE PETERS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding**

Submitted December 14, 2021***

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Oregon state prisoner Aaron Van Neubarth appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004). We affirm.

The district court properly granted summary judgment on Neubarth’s

allegations regarding his gastrointestinal issues and umbilical hernia because these

issues were determined by a valid and final determination in a prior proceeding.

See ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th

Cir. 2014) (the preclusive effect of a state court judgment is determined by

applying that state’s preclusion principles); Nelson v. Emerald People’s Util. Dist.,

862 P.2d 1293, 1296-97 (Or. 1993) (requirements of issue preclusion under

Oregon law).

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

against defendant Dravis because Neubarth failed to exhaust his administrative

remedies and failed to raise a genuine dispute of material fact as to whether

administrative remedies were effectively unavailable. See Woodford v. Ngo, 548

U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means

using all steps that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits).” (citation and internal quotation marks

omitted)); Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc)

(explaining that once the defendant has carried the burden to prove that there was

an available administrative remedy, the burden shifts to the plaintiff to produce

2 20-35539 evidence showing that administrative remedies were effectively unavailable to

him).

The district court did not abuse its discretion by denying Neubarth’s motion

for a preliminary injunction because Neubarth failed to demonstrate that such relief

is warranted. See Jackson v. City & County of San Francisco, 746 F.3d 953, 958

(9th Cir. 2014) (plaintiff seeking preliminary injunction must establish that he is

likely to succeed on the merits, he is likely to suffer irreparable harm in the

absence of preliminary relief, the balance of equities tips in his favor, and an

injunction is in the public interest).

The district court did not abuse its discretion by denying Neubarth’s motions

for appointment of counsel because Neubarth failed to demonstrate exceptional

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

forth standard of review and “exceptional circumstances” requirement for

appointment of counsel).

All pending motions and requests are denied.

AFFIRMED.

3 20-35539