Timothy Olmos v. Charles Ryan , 623 F. App'x 903 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY PAUL OLMOS, No. 14-15406
Plaintiff - Appellant, D.C. No. 2:10-cv-02564-GMS
v.
MEMORANDUM*
CHARLES L. RYAN; ALLEN ORTEGA,
Co II/SSU Officer #2083,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Timothy Paul Olmos appeals pro se from the district court’s judgment in his
42 U.S.C. § 1983 action alleging constitutional violations in connection with his
conditions of confinement. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo summary judgment and dismissal under Fed. R. Civ. P. 12(b)(6).
Doe v. Abbott Labs, 571 F.3d 930, 933 (9th Cir. 2009). We affirm.
The district court properly concluded that Olmos failed to exhaust his claims
regarding charges for certain services and items, interest payments for his prisoner
bank account, and prison mail policies, and failed to establish that administrative
remedies were effectively unavailable to him. See Sapp v. Kimbrell, 623 F.3d 813,
821-24 (9th Cir. 2010) (discussing proper exhaustion and describing limited
circumstances where improper screening renders administrative remedies
unavailable).
The district court properly granted summary judgment on Olmos’ claims
regarding overcrowding, insufficient food, charges for certain services and items,
and compensation as an educational aide on the basis of qualified immunity
because it would not have been clear to every reasonable prison official that
defendant’s actions were unlawful. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080,
2083 (2011) (explaining two-part test for qualified immunity).
The district court properly dismissed Olmos’ takings claim regarding the
return of inmate-purchased clothing as unripe because it is not yet fit for judicial
review and the hardship to Olmos has not yet occurred. See Alaska Right to Life
Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (elements of
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prudential ripeness).
The district court properly granted summary judgment on Olmos’ retaliation
claim because Olmos failed to raise a genuine dispute of material fact as to whether
the adverse action did not reasonably advance a legitimate correctional goal. See
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements
of inmate retaliation claim).
The district court properly granted summary judgment on Olmos’ claim
regarding compensation as a kitchen worker because Olmos failed to raise a
genuine dispute of material fact as to whether the position was classified to be paid
at a higher wage. See Ariz. Rev. Stat. § 31-254(A) (granting the director discretion
to determine prison worker’s compensation).
The district court did not abuse its discretion in denying Olmos’ motion to
amend his complaint because Olmos had not yet served defendants and he was
given subsequent opportunities to amend his complaint. See Hinton v. Pac.
Enters., 5 F.3d 391, 395 (9th Cir. 1993) (setting forth standard of review and
requirements for leave to amend).
The district court did not abuse its discretion in denying Olmos’ motions for
discovery because Olmos failed to show what material facts would have been
discovered that would have precluded summary judgment. See Klingele v.
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Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (“The burden is on the nonmoving
party . . . to show what material facts would be discovered that would preclude
summary judgment.”).
The district court did not abuse its discretion in denying Olmos’ motion to
appoint counsel because Olmos did not demonstrate exceptional circumstances.
See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting forth standard
of review and requirements for appointment of counsel).
We do not consider issues or arguments 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) (per curiam).
Appellees’ motion to strike Olmos’ appendix, filed on June 20, 2014, is
denied as moot.
AFFIRMED.
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