Charles Reed v. John Biddulph , 669 F. App'x 374 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES V. REED, No. 15-35653
Plaintiff-Appellant, D.C. No. 2:14-cv-00366-SAB
v.
MEMORANDUM*
JOHN BIDDULPH; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Charles V. Reed, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First
Amendment retaliation and Washington state tort claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Brodheim v. Cry, 584 F.3d 1262,
*
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).
1267 (9th Cir. 2009), and we affirm.
The district court properly granted summary judgment on Reed’s retaliation
claims because Reed failed to raise a genuine dispute of material fact as to whether
defendants acted with a retaliatory motive and whether there was an absence of
legitimate correctional goals for defendants’ conduct. See id., 584 F.3d at 1271(“To prevail on a retaliation claim, a plaintiff must show that his protected conduct
was the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.”
(citation and internal quotation marks omitted)); Pratt v. Rowland, 65 F.3d 802,
806 (9th Cir .1995) (“The plaintiff bears the burden of pleading and proving the
absence of legitimate correctional goals for the conduct of which he complains.”).
The district court properly granted summary judgment on Reed’s
Washington state tort claims because Reed failed to raise a triable dispute as to
whether defendants committed any torts. See Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive
summary judgment, a plaintiff must set forth non-speculative evidence of specific
facts, not sweeping conclusory allegations.”).
The district court did not abuse its discretion by denying Reed’s motion to
compel discovery because Reed failed to show that denial of discovery would
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result in actual and substantial prejudice. See Hallett v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002) (setting forth standard of review; “Broad discretion is vested in
the trial court to permit or deny discovery, and its decision to deny discovery will
not be disturbed except upon the clearest showing that denial of discovery results
in actual and substantial prejudice to the complaining litigant.” (citation and
internal quotation marks omitted)).
The district court also properly denied Reed’s Rule 56(d) motion to continue
summary judgment to allow further discovery because Reed failed to identify
specific facts to be obtained in discovery that would have precluded summary
judgment. See Qualls By & Through Qualls v. Blue Cross of Cal., Inc., 22 F.3d
839, 844 (9th Cir. 1994) (setting forth standard of review; district court properly
implicitly denied Rule 56(f) (now Rule 56(d)) motion where additional requested
discovery would not have precluded summary judgment); Margolis v. Ryan, 140
F.3d 850, 854 (9th Cir. 1998) (Rule 56(f) (now 56(d)) motion properly denied
where “appellants failed to identify facts, either discovered or likely to be
discovered,” that would preclude summary judgment).
We will not consider matters not properly raised before the district court.
See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)
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(where “the complaint does not include the necessary factual allegations to state a
claim, raising such claim in a summary judgment motion is insufficient to present
the claim to the district court”); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (“we will not consider arguments that are raised for the first time on
appeal”). We reject, as without merit, Reed’s contentions that he should have been
given leave to amend, that the case should have been heard before a magistrate,
that the case should be remanded to change the order of defendant names in the
caption, and his immunity arguments.
AFFIRMED.
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