Kenneth Hibbler v. Julie Rexwinkel;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH HIBBLER,
Plaintiff - Appellant,
v.
JULIE REXWINKEL; et al.,
Defendants - Appellees.
No. 13-16552
D.C. No. 3:11-cv-00067-LRH-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Former Nevada state prisoner Kenneth Hibbler appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
retaliation and deliberate indifference to his serious medical needs. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion
FILED
SEP 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 3 --

discovery rulings, Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002), and we
affirm.
The district court did not abuse its discretion in partially denying Hibbler’s
motion for the Inspector General’s report because Hibbler did not demonstrate
“actual and substantial prejudice,” where the record showed that this report did not
exist. Id. at 751 (citation and internal quotation marks omitted) (explaining a
district court’s broad discretion to permit or deny discovery). Moreover, the
district court ordered production of, and Rexwinkle produced, a copy of an
incident report, which did exist.
The district court did not abuse its discretion in denying Hibbler’s motion
for a final discovery extension because Hibbler failed to demonstrate good cause.
See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607, 609 (9th Cir. 1992)
(setting forth standard of review and “good cause” requirement to modify a
scheduling order). Additionally, Hibbler failed to show what material facts would
have been discovered that would have precluded summary judgment. See Klingele
v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (“The burden is on the
nonmoving party . . . to show what material facts would be discovered that would
preclude summary judgment.”).
We reject Hibbler’s contentions regarding the district court’s alleged bias
13-16552 2

-- 2 of 3 --

and prejudice.
We do not consider Hibbler’s arguments relating to his deliberate
indifference claim because Hibbler does not challenge the basis for the district
court’s dismissal of his deliberate indifference claim. See Padgett v. Wright, 587
F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We do not consider Hibbler’s arguments as to why he did not properly
exhaust his retaliation claims because they were raised for the first time in his reply
brief. See id. Moreover, Hibbler concedes that he did not file second level
grievances.
We do not consider any arguments and allegations raised for the first time on
appeal. See id.
Appellees’ motion to strike, filed on July 30, 2015, is denied.
Hibbler’s request, filed on August 10, 2015, is denied.
AFFIRMED.
13-16552 3

-- 3 of 3 --