Robert James Dixon v. JAMES A. YATES, Warden;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JAMES DIXON,
Plaintiff - Appellant,
v.
JAMES A. YATES, Warden; et al.,
Defendants - Appellees.
No. 12-15508
D.C. No. 1:09-cv-00657-AWI-
DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
California state prisoner Robert James Dixon appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal for failure to exhaust
FILED
MAY 23 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003),
and for an abuse of discretion a dismissal for failure to effectuate service, Puett v.
Blandford, 912 F.2d 270, 273 (9th Cir. 1990). We affirm.
The district court properly dismissed without prejudice Dixon’s Eighth
Amendment claims against defendant Igbinosa because Dixon failed properly to
exhaust his administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95
(2006) (holding that “proper exhaustion” is mandatory and requires adherence to
administrative procedural rules).
The district court did not abuse its discretion by dismissing without
prejudice the claims against defendant Diep because Dixon failed to effectuate
service in a timely manner. See Fed. R. Civ. P. 4(m) (requiring service within 120
days after complaint is filed); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.
1994) (holding that an incarcerated pro se plaintiff proceeding in forma pauperis
must provide the marshal with sufficient information necessary for service),
abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
The district court did not abuse its discretion in denying Dixon’s request for
appointment of counsel because Dixon failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and the exceptional circumstances requirement).

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Dixon’s motion to accept the late filed reply brief is granted. The Clerk
shall file the reply brief submitted on April 25, 2013.
Dixon’s motions for appointment of counsel, filed on February 4, 2013, and
May 10, 2013, are denied.
AFFIRMED.

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