Susan Polk v. Godina , 692 F. App'x 924 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN MAE POLK, No. 15-17425
Plaintiff-Appellant, D.C. No. 1:12-cv-01094-LJO-BAM
v.
MEMORANDUM*
GODINA, C/O; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
California state prisoner Susan Mae Polk appeals pro se from the district
court’s judgment dismissing her 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Wilhelm v.
*
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).
Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We may affirm on any basis
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Polk’s First Amendment retaliation
claims because Polk failed to allege facts sufficient to show that defendants took
adverse action against Polk because of protected conduct, that defendants’ actions
harmed Polk or otherwise chilled exercise of her First Amendment rights, and that
defendants’ actions were not undertaken to advance legitimate correctional
purposes. See Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012)
(elements of First Amendment retaliation claim in prison context); Hebbe v. Pliler,
627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally
construed, a plaintiff must present factual allegations sufficient to state a plausible
claim for relief).
The district court properly dismissed Polk’s access-to-court claims because
Polk failed to allege facts sufficient to show that she suffered an actual injury as a
result of the alleged deprivations. See Christopher v. Harbury, 536 U.S. 403, 412-
15 (2002) (requirements for access-to-courts claim).
The district court properly dismissed Polk’s conspiracy claims, because Polk
failed to allege facts sufficient to show any actual deprivation of her constitutional
rights as a result of the alleged conspiracy. See Woodrum v. Woodward County,
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Okla., 866 F.2d 1121, 1126 (9th Cir. 1989) (elements of conspiracy claim under §
1983).
The district court properly dismissed Polk’s due process claim against
defendant Stockton based on Stockton’s alleged deprivation of her property
because Polk has an adequate post-deprivation remedy under California law. See
Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (“California [l]aw provides
an adequate post-deprivation remedy for any property deprivations.”).
Dismissal of Polk’s Eighth Amendment claim based on an alleged
deprivation of food by unnamed prison officials was proper because Polk failed to
allege facts sufficient to show that she suffered a sufficiently serious deprivation.
See Hebbe, 627 F.3d at 342; LeMaire v. Maass, 12 F.3d 1444, 1451-52, 1456 (9th
Cir. 1993) (explaining that Eighth Amendment “requires only that prisoners
receive food that is adequate to maintain health.”).
Contrary to Polk’s contention, her allegations of deliberate indifference by
defendant Cate were insufficient to support her claim of deliberate indifference by
Cate’s successor. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)
(supervisor may be held liable under § 1983 if, among other things, he or she is
personally involved); Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th
Cir. 2007) (Eleventh Amendment prohibits suits against state officials acting in
their official capacities).
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Contrary to Polk’s contention, the district court acted within its discretion by
assessing a strike under 28 U.S.C. § 1915(g).
The district court did not abuse its discretion in denying Polk’s request to
amend following dismissal of her second amended complaint, because Polk had
already twice been granted leave to amend. See Chodos v. West Publ’g Co., 292
F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already granted a
plaintiff leave to amend, its discretion in denying subsequent motions to amend is
particularly broad” (citation and internal quotation marks omitted)).
We reject as unsupported by the record Polk’s arguments that the magistrate
judge should have granted her January 29, 2015 motion for extension of time, that
the district court violated Polk’s due process rights, that the magistrate judge was
biased, and that Polk should have been allowed to join claims from other lawsuits.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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