NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GUADALUPE AMEZQUITA, 

Plaintiff-Appellant, 

 v. 

HOUGH; et al., 

Defendants-Appellees.

No. 21-56059 

D.C. No. 

3:19-cv-01461-AJB-KSC 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Submitted June 20, 2023**

San Francisco, California

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Jose Amezquita appeals pro se from the district court’s summary judgment 

for California Department of Corrections and Rehabilitation Correctional Officers 

Dystery Hough and Robert Downs and Associate Warden Francisco Armenta 

(Defendants). We have jurisdiction under 28 U.S.C. § 1291. We review de novo 

* 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

JUN 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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the district court’s summary judgment and its determination that a prisoner failed to 

exhaust administrative remedies. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 

2004); Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We review for an 

abuse of discretion orders concerning discovery and appointment of counsel under

28 U.S.C. § 1915. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1469 

(9th Cir. 1992); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). We affirm.

Amezquita alleges that Defendants acted with deliberate indifference in 

violation of the Eighth Amendment while he was an inmate when they ignored his 

threat of suicide for placing him in an administrative segregation unit, the “C-Yard.” 

Amezquita states that placement in the C-Yard would endanger his life as he was 

suffering from suicidal thoughts, paranoia, and claustrophobia, and that he was 

placed there in retaliation for refusing to act as a “snitch.” He alleges that the officers 

knew he would be suicidal if he were placed in the C-Yard, but the officers ignored 

him as they escorted him to the C-Yard, where Amezquita says that he self-harmed. 

Amezquita sued Defendants under 42 U.S.C. § 1983, arguing that Defendants 

were aware of his risk of suicide but were deliberately indifferent to his serious 

medical needs when he cut himself. The district court adopted the magistrate judge’s

report and recommendation to grant Defendants’ motion for summary judgment, and 

deny Amezquita’s request for additional discovery and appointment of counsel. 

Amezquita asks us to overturn the summary judgment, arguing that he exhausted his 
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administrative remedies and/or they were unavailable, the court erred in granting 

summary judgment without a jury trial, and the court should have granted him 

assistance of counsel and allowed him more time for discovery.

Amezquita first argues that he exhausted administrative remedies before filing 

this action, as required under the Prison Litigation Reform Act. 42 U.S.C. § 

1997e(a). In this case, he needed to have utilized the California prison system’s 

grievance process by submitting a Form 602 within 30 days of the contested action. 

Cal. Code Regs. tit. 15 §§ 3084-3085 (2019) (repealed June 1, 2020). In the 

alternative, he argues that administrative remedies were effectively unavailable to 

him as he feared retaliation from prison officers if he chose to file a Form 602. 

A defendant bears the burden to prove that the prison had “an available 

administrative remedy” and that “the prisoner did not exhaust that available 

remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). After the 

defendant makes such a showing, the plaintiff bears the burden of production to 

establish that “there is something in his particular case that made the existing and 

generally available administrative remedies effectively unavailable to him.” Id. 

Defendants met their burden by providing non-speculative evidence, including 

through testimonies and physical evidence indicating that they had no record of 602 

forms filed by Amezquita. Amezquita asserts that the forms must have been lost or 

deliberately misplaced, and that he is excused from exhaustion because he feared 
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retaliation from prison officials if he had filed them. McBride v. Lopez, 807 F.3d 

982, 987 (9th Cir. 2015) (holding that administrative remedies are unavailable for 

fear of retaliation if an inmate shows he (1) actually believed officials would retaliate 

against him, and (2) his belief was objectively reasonable). 

We assume arguendo that Amezquita did exhaust his claims, or that they were 

unavailable to him. However, we hold that summary judgment was properly granted 

to Defendants on the merits, as Amezquita failed to produce specific facts beyond 

his pleadings that puts Defendants’ evidence into dispute. T.W. Elec. Serv. v. Pacific 

Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (to preclude summary 

judgment, a party may not rest on allegations in his pleadings but must set forth 

specific facts showing that there is a genuine issue for trial). First, Defendants 

produced time-stamped records and sworn declarations showing how Officers 

Hough and Downs, whom Amezquita alleges escorted him to the C-Yard, were not 

actually present at work at the time. Second, Amezquita’s own testimony indicates 

that his statements to Defendants were much vaguer than admitting he would kill 

himself if put into C-Yard; rather, he told Armenta that “something is going to 

happen to me” if he is sent to C-Yard. From these pleadings and statements alone, 

Amezquita has not shown that Defendants were aware of and disregarded an 

excessive risk to his health and safety. Hamby v. Hammond, 821 F.3d 1085, 1092 

(9th Cir. 2016). The district court did not err in holding that no reasonable jury could 
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conclude that Defendants were subjectively aware of and failed to respond to 

Amezquita’s suicide risk. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Amezquita contends that the district court also erred in not appointing counsel

for him as a pro se litigant. Though Amezquita may face challenges litigating his 

case pro se, it is within a district court’s discretion whether to appoint counsel in a § 

1983 action and whether “exceptional circumstances” exist to do so. U. S. ex rel. 

Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). Here, the district court acted 

within its discretion as Amezquita has demonstrated a general ability to articulate 

his claims throughout his case and there is not a likelihood of success on the merits. 

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). 

Amezquita argues that he should have been allowed additional time to 

complete discovery, considering his pro se status, particularly during the COVID19 pandemic. However, the district court has broad discretion in deciding whether 

to permit additional discovery and its decision will not be disturbed “except upon 

the clearest showing that the denial of discovery results in actual and substantial 

prejudice.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). The 

district court did not abuse its discretion here, as Amezquita has not described how 

additional evidence of video surveillance has a reasonable probability of showing 

how the ultimate outcome of the court’s decision would be different. Id. 

AFFIRMED.