David Scott Peasley v. KATHERINE RIPPBERGER, LVN, San Quentin State Prison

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCOTT PEASLEY,
Plaintiff-Appellant,
v.
KATHERINE RIPPBERGER, LVN, San
Quentin State Prison,
Defendant-Appellee.
No. 20-16695
D.C. No. 5:18-cv-03498-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted July 6, 2022**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
David Peasley appeals from the district court’s prescreening order dismissing
his excessive force claim against nurse Katherine Rippberger, from the district
court’s summary judgment in favor of Rippberger on Peasley’s deliberate
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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indifference and first amendment retaliation claims, and from the district court’s
orders denying his various discovery requests, entering a stay of discovery, and
denying his motion for appointment of counsel. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We review de novo a district court’s dismissal of a complaint under 28 U.S.C.
§ 1915A for failure to state a claim upon which relief can be granted. Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Here, the district court properly dismissed
Peasley’s excessive force claim against Rippberger because Rippberger applied no
physical force to Peasley. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.
2003) (stating that an excessive force claim requires “the need for application of
force”), quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992).
We review for an abuse of discretion a district court’s rulings concerning
discovery. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). Here, the district
court did not abuse its discretion in denying Peasley’s various discovery requests or
in entering a temporary stay of discovery because Peasley did not attempt to meet
and confer with Rippberger, Peasley did not diligently pursue discovery and
appeared to be misusing the discovery process, and Peasley’s discovery requests
were not necessary for resolving the opposing motions for summary judgment.
We review de novo a district court’s ruling on cross-motions for summary
judgment. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970

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(9th Cir. 2011). Here, the district court properly granted summary judgment in favor
of Rippberger on Peasley’s deliberate indifference claim because Peasley failed to
establish that Rippberger was aware of the failure to administer Peasley’s lunchtime
insulin, that Rippberger was aware that Peasley needed a corrective dose of insulin
in the afternoon, or that Rippberger acted below the standard of care once she learned
of Peasley’s need for insulin. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (stating that a claim for deliberate indifference under the eighth amendment
requires that a prison official “knows of and disregards an excessive risk to inmate
health and safety”).
The district court also properly granted summary judgment in favor of
Rippberger on Peasley’s first amendment retaliation claim because Peasley failed to
establish that Rippberger took any “adverse action” against Peasley or that any
potential adverse action was “because of” Peasley’s planned testimony against the
California Department of Corrections and Rehabilitation. Rhodes v. Robinson, 408
F.3d 559, 567–68 (9th Cir. 2005) (holding that a first amendment retaliation claim
requires “[a]n assertion that a state actor took some adverse action against an inmate”
and that the adverse action was “because of” protected conduct).
We review for an abuse of discretion a 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). Here, the district court did not abuse its discretion in denying

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Peasley’s motion to appoint counsel because Peasley failed to show that
“exceptional circumstances” justified the appointment of counsel. Rand v. Rowland,
113 F.3d 1520, 1525 (9th Cir. 1997) (stating that a district court has the discretion
to appoint counsel for indigent litigants pursuant to 28 U.S.C. § 1915(d) in
“exceptional circumstances”).
We do not consider arguments raised for the first time on appeal. Raich v.
Gonzales, 500 F.3d 850, 868 (9th Cir. 2007).
AFFIRMED.

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