Johnny Warren v. Clarence Dupnik , 585 F. App'x 354 ( 2014 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 7 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOHNNY LEE WARREN,                               No. 13-15890
    Plaintiff - Appellant,            D.C. No. 4:11-cv-00340-FRZ
    v.
    MEMORANDUM*
    CLARENCE W. DUPNIK, et al.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Arizona
    Frank R. Zapata, District Judge, Presiding
    Submitted September 23, 2014**
    Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
    Arizona state prisoner Johnny Lee Warren appeals pro se from the district
    court’s judgment in his 
    42 U.S.C. § 1983
     action alleging constitutional violations
    while in county detention. We have jurisdiction under 
    28 U.S.C. § 1291
    . We
    review de novo. Bruce v. Ylst, 
    351 F.3d 1283
    , 1287 (9th Cir. 2003) (summary
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    judgment); Resnick v. Hayes, 
    213 F.3d 443
    , 447 (9th Cir. 2000) (dismissal under
    28 U.S.C. § 1915A). We may affirm on any basis supported by the record,
    Johnson v. Riverside Healthcare Sys., LP, 
    534 F.3d 1116
    , 1121 (9th Cir. 2008),
    and we affirm.
    The district court properly granted summary judgment on Warren’s First
    Amendment claim regarding the 28-day period while Warren awaited approval for
    a pork-free diet because Warren failed to raise a genuine dispute of material fact as
    to whether the verification requirements were not reasonably related to legitimate
    penological interests and unduly burdened Warren’s ability to exercise his religion.
    See Resnick v. Adams, 
    348 F.3d 763
    , 768-71 (9th Cir. 2003) (requiring an
    application to provide a religious diet does not unduly burden a prisoner’s right to
    practice his religion); Ward v. Walsh, 
    1 F.3d 873
    , 877 (9th Cir. 1993) (recognizing
    simplified food service as a legitimate penological interest); see also Starr v. Baca,
    
    652 F.3d 1202
    , 1207 (9th Cir. 2011) (discussing the requirements for establishing
    supervisory liability).
    The district court did not abuse its discretion by granting summary judgment
    without ordering further discovery because Warren did not establish how
    additional discovery would have affected the disposition of his case. See Fed. R.
    Civ. P. 56(d); Barona Grp. of the Capitan Grande Band of Mission Indians v. Am.
    2                                    13-15890
    Mgmt. & Amusement, Inc., 
    840 F.2d 1394
    , 1399-1400 (9th Cir. 1987) (setting forth
    standard of review and explaining that movant must show specific facts he hopes
    to discover and how those facts would preclude summary judgment).
    Dismissal of Warren’s Eighth Amendment claims was proper because
    Warren failed to allege facts sufficient to show that he was placed at substantial
    risk of serious harm by the 28-day delay in approval of a pork-free diet. See
    Farmer v. Brennan, 
    511 U.S. 825
    , 837 (1994) (“[A] prison official cannot be found
    liable under the Eighth Amendment for denying an inmate humane conditions of
    confinement unless the official knows of and disregards an excessive risk to inmate
    health or safety. . . .”); LeMaire v. Maass, 
    12 F.3d 1444
    , 1456 (9th Cir. 1993)
    (Eighth Amendment requires only that prisoners receive food that is adequate to
    maintain health).
    Dismissal of Warren’s equal protection claim was proper because Warren
    failed to allege facts sufficient to show that defendants intentionally discriminated
    against him based on his religion by not offering Friday religious services. See
    Thornton v. City of St. Helens, 
    425 F.3d 1158
    , 1166 (9th Cir. 2005) (to state an
    equal protection claim, “a plaintiff must show that the defendants acted with an
    intent or purpose to discriminate against the plaintiff based upon membership in a
    protected class” (citation and internal quotation marks omitted)); see also Cruz v.
    3                                    13-15890
    Beto, 
    405 U.S. 319
    , 322 n.2 (1972) (per curiam) (a prisoner’s reasonable
    opportunity to pursue his faith does not ensure facilities or personnel identical to
    other religious groups).
    We reject Warren’s contention that the district court erred by not considering
    on summary judgment his unsupported claim that the 28-day delay caused him to
    develop additional health problems, or by not considering his alleged state
    constitutional claims.
    Warren’s motion for appointment of appellate counsel, filed on July 21,
    2014, is denied.
    AFFIRMED.
    4                                    13-15890