NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE ABEL FIERRO, No. 19-16786
Plaintiff-Appellant, D.C. No. 2:13-cv-02173-JJT
v. MEMORANDUM* KEITH SMITH, Security Operations Administrator at Phoenix Division Director's Office; et al.,
Defendants-Appellees,
and
CHARLES L. RYAN; et al.,
Defendants.
Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding
Argued and Submitted January 13, 2022 Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Jose Abel Fierro, proceeding pro se from prison, brought an action under 42
U.S.C. § 1983 alleging that Arizona Department of Corrections prison officials and
medical providers failed to protect him and denied him adequate medical care in
violation of the Eighth Amendment. As relevant here, Fierro challenges (1) the
district court’s repeated denials of his motions to appoint counsel before eventually
appointing counsel for trial, and (2) the district court’s summary judgment in favor
of Ryan Brower, Dr. Zoran Vukcevic, and Tammie Nash on Fierro’s inadequate
medical care claims. We affirm the district court’s judgment on these issues.1
1. We review for an abuse of discretion the 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). The appointment of counsel under 28 U.S.C.
§ 1915(e)(1) is within “the sound discretion of the trial court and is granted only in
exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)).
A finding of exceptional circumstances requires an evaluation of (1) “the
likelihood of success on the merits,” and (2) “the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1 Fierro raises one additional argument on appeal, which we address in an opinion filed simultaneously with this memorandum disposition.
2 1983)). Neither factor alone is dispositive; they must be weighed together. Id.
Fierro argues that the district court erred by failing to articulate its reasons
for denying his motions to appoint counsel.2 In the alternative, he argues that even
if the court had analyzed the relevant factors, its denial of the motions would be an
abuse of discretion. Although the court did not give detailed reasons for denying
Fierro’s motions, the orders nevertheless were responsive to Fierro’s requests and
correctly stated the relevant law. In its first order declining to appoint counsel, the
district court described the standard for exceptional circumstances and concluded
that such circumstances were not present in this case. In later orders, the
magistrate judge gave more detail, explaining that any difficulties Fierro was
experiencing “due to his lack of legal training and limited access to legal
resources” were “the same difficulties that most pro se prisoner litigants face and
d[id] not establish exceptional circumstances.” On two occasions, the magistrate
judge further explained that Fierro “continue[d] to file motions and other
documents in this case, indicating that he is able to present his claims to the
[c]ourt.” Fierro argues that, as in Solis v. County of Los Angeles, 514 F.3d 946,
958 (9th Cir. 2008), the district court’s failure to explain its reasons requires
2 Fierro’s first motion to appoint counsel was denied by the district judge, and his six subsequent motions were referred to and denied by the magistrate judge. Our references to the “district court” here encompass the decisions of both the district judge and the magistrate judge.
3 remand. Not so. In Solis, the district court had given no explanation for denying
the plaintiff’s motions to appoint counsel, leaving us unable to determine whether
the denial was an abuse of discretion. Id. In remanding for a new trial on other
grounds, we instructed the district court to reconsider the appointment of counsel
and to provide an explanation for its decision. Id. Here, by contrast, the district
court has provided enough of a rationale to create a record for our review.
On the merits, the district court’s application of the law was not “illogical,
implausible, or without support in inferences that may be drawn from the record.”
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). It was
not necessarily clear that Fierro’s claims had potential merit until after summary
judgment—and the district court appropriately did appoint counsel once it was
apparent that the failure-to-protect claims would go to trial.3 The record also
provides some support for the conclusion that Fierro was ably litigating his claims
pro se, and his failure-to-protect claims were not so complex as to require the
appointment of counsel far in advance of trial. Accordingly, we hold that the
district court did not abuse its discretion by declining to appoint counsel earlier in
3 Fierro argues that the eventual appointment of counsel did not cure the earlier errors because he was prejudiced by having to manage discovery on his own and by his inability to take depositions. Although we are sympathetic to the difficulties pro se prisoners face in navigating discovery, “the need for further factual discovery is not, by itself, sufficient to establish the complexity of the legal issues.” Wilborn, 789 F.2d at 1331 n.5. Further, Fierro could have asked the court for permission to take depositions, but he did not do so.
4 this case.
2. To prevail on an Eighth Amendment claim of inadequate medical care, a
prisoner must show that prison officials were deliberately indifferent to his serious
medical needs. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
Deliberate indifference is established when the prison official “knows of and
disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511
U.S. 825, 837 (1994). Mere “difference of medical opinion is insufficient, as a
matter of law, to establish deliberate indifference.” Toguchi v. Chung, 391 F.3d
1051, 1058 (9th Cir. 2004) (alterations omitted) (quoting Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)). “Rather, to prevail on a
claim involving choices between alternative courses of treatment, a prisoner must
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE ABEL FIERRO, No. 19-16786
Plaintiff-Appellant, D.C. No. 2:13-cv-02173-JJT
v. MEMORANDUM* KEITH SMITH, Security Operations Administrator at Phoenix Division Director's Office; et al.,
Defendants-Appellees,
and
CHARLES L. RYAN; et al.,
Defendants.
Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding
Argued and Submitted January 13, 2022 Pasadena, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Jose Abel Fierro, proceeding pro se from prison, brought an action under 42
U.S.C. § 1983 alleging that Arizona Department of Corrections prison officials and
medical providers failed to protect him and denied him adequate medical care in
violation of the Eighth Amendment. As relevant here, Fierro challenges (1) the
district court’s repeated denials of his motions to appoint counsel before eventually
appointing counsel for trial, and (2) the district court’s summary judgment in favor
of Ryan Brower, Dr. Zoran Vukcevic, and Tammie Nash on Fierro’s inadequate
medical care claims. We affirm the district court’s judgment on these issues.1
1. We review for an abuse of discretion the 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). The appointment of counsel under 28 U.S.C.
§ 1915(e)(1) is within “the sound discretion of the trial court and is granted only in
exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)).
A finding of exceptional circumstances requires an evaluation of (1) “the
likelihood of success on the merits,” and (2) “the ability of the petitioner to
articulate his claims pro se in light of the complexity of the legal issues involved.”
Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1 Fierro raises one additional argument on appeal, which we address in an opinion filed simultaneously with this memorandum disposition.
2 1983)). Neither factor alone is dispositive; they must be weighed together. Id.
Fierro argues that the district court erred by failing to articulate its reasons
for denying his motions to appoint counsel.2 In the alternative, he argues that even
if the court had analyzed the relevant factors, its denial of the motions would be an
abuse of discretion. Although the court did not give detailed reasons for denying
Fierro’s motions, the orders nevertheless were responsive to Fierro’s requests and
correctly stated the relevant law. In its first order declining to appoint counsel, the
district court described the standard for exceptional circumstances and concluded
that such circumstances were not present in this case. In later orders, the
magistrate judge gave more detail, explaining that any difficulties Fierro was
experiencing “due to his lack of legal training and limited access to legal
resources” were “the same difficulties that most pro se prisoner litigants face and
d[id] not establish exceptional circumstances.” On two occasions, the magistrate
judge further explained that Fierro “continue[d] to file motions and other
documents in this case, indicating that he is able to present his claims to the
[c]ourt.” Fierro argues that, as in Solis v. County of Los Angeles, 514 F.3d 946,
958 (9th Cir. 2008), the district court’s failure to explain its reasons requires
2 Fierro’s first motion to appoint counsel was denied by the district judge, and his six subsequent motions were referred to and denied by the magistrate judge. Our references to the “district court” here encompass the decisions of both the district judge and the magistrate judge.
3 remand. Not so. In Solis, the district court had given no explanation for denying
the plaintiff’s motions to appoint counsel, leaving us unable to determine whether
the denial was an abuse of discretion. Id. In remanding for a new trial on other
grounds, we instructed the district court to reconsider the appointment of counsel
and to provide an explanation for its decision. Id. Here, by contrast, the district
court has provided enough of a rationale to create a record for our review.
On the merits, the district court’s application of the law was not “illogical,
implausible, or without support in inferences that may be drawn from the record.”
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). It was
not necessarily clear that Fierro’s claims had potential merit until after summary
judgment—and the district court appropriately did appoint counsel once it was
apparent that the failure-to-protect claims would go to trial.3 The record also
provides some support for the conclusion that Fierro was ably litigating his claims
pro se, and his failure-to-protect claims were not so complex as to require the
appointment of counsel far in advance of trial. Accordingly, we hold that the
district court did not abuse its discretion by declining to appoint counsel earlier in
3 Fierro argues that the eventual appointment of counsel did not cure the earlier errors because he was prejudiced by having to manage discovery on his own and by his inability to take depositions. Although we are sympathetic to the difficulties pro se prisoners face in navigating discovery, “the need for further factual discovery is not, by itself, sufficient to establish the complexity of the legal issues.” Wilborn, 789 F.2d at 1331 n.5. Further, Fierro could have asked the court for permission to take depositions, but he did not do so.
4 this case.
2. To prevail on an Eighth Amendment claim of inadequate medical care, a
prisoner must show that prison officials were deliberately indifferent to his serious
medical needs. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
Deliberate indifference is established when the prison official “knows of and
disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511
U.S. 825, 837 (1994). Mere “difference of medical opinion is insufficient, as a
matter of law, to establish deliberate indifference.” Toguchi v. Chung, 391 F.3d
1051, 1058 (9th Cir. 2004) (alterations omitted) (quoting Jackson v. McIntosh, 90
F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc)). “Rather, to prevail on a
claim involving choices between alternative courses of treatment, a prisoner must
show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the
prisoner’s] health.’” Id. (alteration in original) (quoting Jackson, 90 F.3d at 332).
First, Fierro contends there was a genuine factual dispute about whether
Defendants Vukcevic and Brower provided constitutionally inadequate care by
declining to follow the recommendation of Fierro’s physicians for the treatment of
Fierro’s nerve and back pain. But prison medical officials’ rejection of the opinion
of a specialist or treating physician does not constitute deliberate indifference if it
5 is based on a difference of medical opinion, rather than “for reasons unrelated to
the medical needs of the prisoner.” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th
Cir. 1992), abrogated in part on other grounds as recognized in Est. of Ford v.
Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002). Both Vukcevic and Brower
offered medical reasons for parting ways with the recommendations of the other
doctors. The district court lacked evidence from which to conclude there was a
genuine dispute that the course of treatment chosen by Vukcevic and Brower was
medically unacceptable. See Toguchi, 391 F.3d at 1058.
Second, Fierro asserts that the decision to reduce his dosage of two pain
medications constituted deliberate indifference. Vukcevic and Brower indicate
they lowered Fierro’s dosages for medical reasons, noting that one of the
medications was not approved for Fierro’s condition, the other could cause
negative side effects, and other pain medications were “better options for chronic
pain.” They also cited concerns about “rampant abuse” and “hoarding” of pain
medications in the broader prison population. Because the decrease in Fierro’s
dosages was based at least in part on individualized, health-based rationales, and
not solely on administrative policy or concerns about broader drug use in the
prison, Fierro has not raised a genuine dispute that Vukcevic and Brower were
deliberately indifferent to his serious medical needs. We therefore affirm the
summary judgment in favor of Defendants Vukcevic and Brower.
6 Finally, Fierro challenges the district court’s summary judgment in favor of
Defendant Tammie Nash, whom Fierro believed to be the clinical coordinator who
had denied him hand surgery. Nash moved for summary judgment on the basis
that she was not the clinical coordinator and had not been involved in Fierro’s care.
Fierro argues on appeal that the district court should have helped him identify the
proper defendant and given him more time to obtain his full medical records to
identify the relevant clinical coordinator. We conclude that these arguments were
forfeited in the district court. In response to Nash’s motion for summary judgment,
Fierro insisted that Nash was involved in his care and requested his medical
records to prove Nash’s involvement; he did not ask the district court for help
finding a substitute defendant or for more time to identify the clinical coordinator
responsible for his care. We cannot fault the district court for failing to help Fierro
when he did not request the court’s assistance. Accordingly, we affirm the district
court’s summary judgment in favor of Defendant Nash.
AFFIRMED IN PART.