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 2021-12

Danny Fabricant v. J. Shartle ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        DEC 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY FABRICANT,                                No.    18-15995
Plaintiff-Appellant,            D.C. No. 4:15-cv-00236-JGZ
v.
MEMORANDUM*
J. T. SHARTLE, Warden,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted December 7, 2021 **
San Francisco, California
Before: OWENS, BADE, and LEE, Circuit Judges.
Danny Fabricant, a federal prisoner, appeals pro se from the district court’s
order granting summary judgment and dismissing his lawsuit seeking declaratory
and injunctive relief for alleged violations of his First Amendment right to receive
mail, and from its denial of his motion under Federal Rule of Civil Procedure 60(b).
*
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).
We have jurisdiction under
    28 U.S.C. § 1291
    , and review de novo. Albino v. Baca,
    747 F.3d 1162
    , 1168 (9th Cir. 2014) (en banc); Bateman v. U.S. Postal Serv.,
    231 F.3d 1220
    , 1223 (9th Cir. 2000) (denial of Rule 60(b) motion). We affirm.
The district court properly dismissed four of Fabricant’s five claims for failure
to state a claim under 28 U.S.C. § 1915A. The dismissed claims were vague and
implausible, see Ashcroft v. Iqbal,
    556 U.S. 662
    , 678 (2009), or challenged a practice
that was reasonably related to a legitimate penological purpose. See Thornburgh v.
Abbott,
    490 U.S. 401
    , 413 (1989).
The district court also properly granted partial summary judgment on
Fabricant’s claims related to magazines already returned to the publisher. His
transfer to another prison mooted his claims for declaratory and prospective
injunctive relief. See Alvarez v. Hill,
    667 F.3d 1061
    , 1064 (9th Cir. 2012).
Further, the district court properly dismissed without prejudice some of
Fabricant’s claims in which he had failed to pursue his administrative remedies
through the final level of review. 42 U.S.C. § 1997e(a). It also did not err in granting
summary judgment on Fabricant’s as-applied First Amendment challenge to the
warden’s rejection of a single issue of Time magazine. The rejection was reasonably
related to security and to inmate rehabilitation, both legitimate penological purposes.
See Thornburgh,
    490 U.S. at 413
    .
The district court did not abuse its discretion in denying Fabricant’s motion
2                                    18-15995
for relief from judgment because he failed to come forward with any basis for relief.
See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc.,
    5 F.3d 1255
    , 1263 (9th
Cir. 1993). Nor did it abuse its discretion in denying Fabricant’s motions for
extensions of time. The district court reasonably refused to grant a further extension
after it had already granted multiple extensions. And the district court did not abuse
its discretion in denying his requests for injunctive relief. The reasons stated by the
district court were proper. E.g., Hayes v. Idaho Corr. Ctr.,
    849 F.3d 1204
    , 1211 (9th
Cir. 2017) (explaining that mail from the courts is not legal mail); Zepeda v. U.S.
I.N.S.,
    753 F.2d 719
    , 727 (9th Cir. 1983) (holding that a court “may not attempt to
determine the rights of persons not before the court”).
Finally, the district court has wide discretion in denying requests for
discovery, Laub v. U.S. Dep’t of Interior,
    342 F.3d 1080
    , 1093 (9th Cir. 2003), and
thus did not abuse its discretion in denying Fabricant’s requests for additional
discovery.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009);
Leer v. Murphy,
    844 F.2d 628
    , 634 (9th Cir. 1988) (stating that issues raised in brief
but not supported by argument are deemed abandoned). All such arguments are thus
waived.
Fabricant’s motion for an order directing appellee to file replacement
3                                    18-15995
supplemental excerpts of record (Docket Entry No. 25) is denied.
AFFIRMED.
4                          18-15995