Klein v. Williams, 100217 FED9, 12-15456

Docket Nº:12-15456
Party Name:PAUL SCOTT KLEIN, Plaintiff-Appellant, v. BRIAN WILLIAMS, Sr.; CHERYL BURSON; MARYANN MARSH; BRILL; MAGNUM; HAIN; REID KIMOTO, Defendants-Appellees.
Judge Panel:Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Case Date:October 02, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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PAUL SCOTT KLEIN, Plaintiff-Appellant,

v.

BRIAN WILLIAMS, Sr.; CHERYL BURSON; MARYANN MARSH; BRILL; MAGNUM; HAIN; REID KIMOTO, Defendants-Appellees.

No. 12-15456

United States Court of Appeals, Ninth Circuit

October 2, 2017

NOT FOR PUBLICATION

Submitted September 28, 2017 [**] San Francisco, California

Appeal from the United States District Court for the District of Nevada D.C. No. 3:08-cv-00191-LRH-VPC Larry R. Hicks, District Judge, Presiding

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

MEMORANDUM [*]

Plaintiff Paul Scott Klein filed a complaint pro se on May 30, 2008, alleging that Defendants-Reid Kimoto, principal of the Southern Desert Correctional Adult High School, and several officials and employees at the Southern Desert Correctional Center ("SDCC")-violated his constitutional rights and that he is thereby entitled to relief under 42 U.S.C. § 1983. He now appeals pro se from the district court's grant of a motion to dismiss on the claims against Kimoto and from summary judgment on all but one claim against all other defendants, the verdict in a bench trial on the surviving claim, and the denial of several of his motions. We reverse the district court's decisions as to Klein's retaliation, conspiracy, and supplemental state law claims, but affirm as to the remaining claims.

Klein's claims, divided into 16 counts, stem from three events: Defendants' response to Klein filing a sexual harassment grievance, and two sets of disciplinary proceedings, one that was initiated shortly after Klein complained about the prison's allegedly defective fire alarm system, and another initiated shortly after he brought a civil rights complaint. On appeal, Klein also brings several procedural claims, arguing that the district court erred in denying his motions for discovery and appointment of counsel and dismissing without leave to amend, and that Defendants violated his right of access to the courts.

I.

Procedural claims

Klein argues that the district court erred in denying his motion for a scheduling order and his discovery request with respect to defendant Kimoto, but failed to explain what he sought to discover or to provide a reason beyond the general claim that Kimoto had some unspecified information that he did not. Reviewing for abuse of discretion, we affirm the district court's denial of Klein's motions and requests for discovery. See Laub v. United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) ("[A] decision 'to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant.'").

Klein also argues that the district court erred in granting defendant Kimoto's motion to dismiss without advising Klein that he could amend his complaint. A dismissal without leave to amend is reviewed de novo. Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th Cir. 2004). Klein failed to show that he would cure deficiencies in his complaint, or provide any examples of the amendments that he would make if given the chance. See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). We thus affirm the district court's denial of leave to amend on the basis that amendment would be futile. See id.

Klein also argues that complexities in his case, including not having physical access to a law library, lack of legal reference material, the inability to retain legal materials because they were taken by prison officials, and legal inexperience require him to have appointed counsel. We review a denial of a motion for appointment of counsel under 28 U.S.C. § 1915(e) for abuse of discretion. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The district court has discretion to designate counsel only in "exceptional circumstances." See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). This requires an "evaluation of both 'the likelihood of success on the merits [and] the inability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'" Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Klein has not demonstrated a likelihood of success on the merits and he has failed to show that any difficulty litigating his case "derived from the complexity of the legal issues involved." See id. Therefore, we find no abuse of discretion in the district court's denial of Klein's motion for appointment of counsel.

We also find unpersuasive Klein's claim that Defendants violated his right of access to the courts. Such a claim requires the prisoner to allege that he suffered an "actual injury." See Lewis v. Casey, 518 U.S. 343, 349-51 (1996). This requires Klein to "demonstrate that the alleged...

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