Michael VICTORY, Plaintiff-Appellant, v. Arnold SCHWARZENEGGER, Governor; et al., Defendants-Appellees, 510 F. App'x 509

MEMORANDUM California state prisoner Michael Victory 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

summary judgment, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and a determination that a prisoner failed to exhaust administrative remedies under the Prison Litigation Reform Act, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm. The district court properly granted

summary judgment because Victory failed to establish a genuine dispute of material fact as to whether defendants consciously disregarded Victory’s serious medical needs by denying his requests for an egg crate mattress, a lower tier cell, an MRI, and a bone scan. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.2004) (discussing objective and subjective elements of deliberate indifference claim); see also id. at 1059-60 (difference of opinion concerning the appropriate course of treatment does not amount to deliberate indifference).

The district court properly dismissed Victory’s claims concerning defendants’ alleged interference with his prescription medicine because Victory, failed to exhaust administrative remedies with respect to these claims. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” is mandatory and requires adherence to administrative procedural rules); Sapp v. Kimbrell, 623 F.3d 813, 823-24 (9th Cir.2010) (futility exception to the administrative exhaustion requirement requires that the inmate establish “that he actually filed a grievance or grievances”).

The district court did not abuse its discretion in denying Victory’s multiple requests for appointment of counsel because Victory 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). The district court did not abuse its discretion in denying Victory’s motion to compel because the motion was - untimely and Victory failed to establish good cause to excuse his late filing. See Laub v. U.S.

Dep’t of Interior, 342 F.3d 1080, 1084, 1093 (9th Cir.2003) (setting forth standard of review and allowing reversal only with “the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant”). Victory’s motion for judicial notice, filed on August 12, 2011, is granted. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.