Vincent Garcia, Plaintiff-appellant, v. Dr. Shedler; Dr. Butler, Defendants-appellees, 87 F.3d 1318 (9th Cir. 1996)

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U.S. Court of Appeals for the Ninth Circuit - 87 F.3d 1318 (9th Cir. 1996)

Submitted June 11, 1996. *Decided June 14, 1996

Before: CANBY, JOHN T. NOONAN, JR., and LEAVY, Circuit Judges.


Vincent Garcia, a California state prisoner, appeals pro se the district court's judgment in favor of defendants in Garcia's 42 U.S.C. § 1983 action, alleging that he was subjected to deliberate indifference to his medical needs when his knee surgery was delayed. We have jurisdiction pursuant to 28 U.S.C. § 1291.1 

Our de novo review of the entire record reveals that the district court properly granted Dr. Shedler's Fed. R. Civ. P. 50(a) motion for judgment following Garcia's presentation of his case in chief at trial. See McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992) (holding that judgment was properly granted for prison doctors where there was no evidence that either doctor was responsible for the delay in surgery).

We affirm the district court's summary judgment in favor of Dr. Butler for the reasons set forth in the Magistrate Judge's September 21, 1993 Findings and Recommendations, which were adopted by the district court in a December 31, 1993 order.2 



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The district court certified that this appeal is not taken in good faith, thereby denying appellant leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a); Fed. R. App. P. 24(a). The court, on its own motion, after an independent review of the record, grants appellant leave to proceed in forma pauperis. See Gardner v. Pogue, 558 F.2d 548 (9th Cir. 1977)


Because this appeal does not present "exceptional circumstances" warranting the appointment of counsel without compensation, appellant's motion for appointment of counsel is denied. See 28 U.S.C. § 1915(d); see also Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), to this appeal