
    Aurelio Martin SEPULVEDA, Plaintiff-Appellant, v. DEPARTMENT OF the TREASURY; et al., Defendants-Appellees.
    No. 07-15669.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 8, 2008.
    
    Filed Sept. 26, 2008.
    Aurelio Martin Sepulveda, Corcoran, CA, pro se.
    Robert L. Baker, Esq., DOJ—U.S. Department of Justice Tax Division/Appellate Section, Washington, DC, Henry Charles Darmstadter, Esq., United States Department of Justice Tax Division, Washington, DC, for Defendants-Appellees.
    Before: TASHIMA, SILVERMAN, and CALLAHAN, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

California state prisoner Aurelio Martin Sepulveda appeals pro se from the district court’s summary judgment in favor of defendants in his 42 U.S.C. § 1983 action alleging he did not receive a federal tax refund for work performed as a prison employee. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001), and we affirm.

The district court properly granted summary judgment to defendants because Sepulveda failed to raise a triable issue of fact as to whether any federal income tax was withheld during the period in question. See Stead v. United States, 419 F.3d 944, 949 (9th Cir.2005) (“[T]he governing law requires that, to recover in this refund suit, the [plaintiffs] must demonstrate that they paid to the government more money than they owed on their ... tax liability.”).

The district court did not abuse its discretion by denying as premature Sepulveda’s motion to compel production of documents because the court had not yet resolved defendants’ motion to dismiss. See Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir.2002) (explaining that the court “may ... stay discovery when it is convinced that plaintiff will be unable to state a claim for relief’) (internal citation omitted).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     