Michael Holmberg v. Christine Gregoire , 494 F. App'x 759 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL A. HOLMBERG, No. 11-35146
Plaintiff - Appellant, D.C. No. 3:08-cv-05775-RJB
v.
MEMORANDUM *
CHRISTINE O. GREGOIRE,
Defendant,
and
ELDON VAIL; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted September 18, 2012 **
Before: LEAVY, PAEZ, and NGUYEN, Circuit Judges.
*
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).
Michael A. Holmberg, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants denied him access to his Mandatory Savings Account (“MSA”) to pay
for court fees in retaliation for his ongoing litigation activities. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary
judgment. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We affirm in part,
reverse in part, and remand.
The district court properly granted summary judgment to defendant Vail
because Holmberg failed to raise a genuine dispute of material fact as to whether
Vail personally participated in the decision to deny Holmberg MSA access. See
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (a supervisor is only liable
where he “participated in or directed the violations, or knew of the violations and
failed to act to prevent them”).
The district court granted summary judgment to defendants Van Boening
and Fitzpatrick after concluding that they denied Holmberg MSA access because
of a Department of Corrections policy that only allows access in the case of an
emergency. However, in opposition to summary judgment, Holmberg submitted
evidence suggesting that both Van Boening and Fitzpatrick routinely granted MSA
access to other prisoners to pay for their litigation activities despite the policy.
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Holmberg also submitted evidence that he was a frequent litigator who had
multiple cases pending against various prison personnel, including Van Boening,
and that Holmberg sought MSA access here to pay the filing fee for a new case
against Van Boening. Viewed in the light most favorable to Holmberg, the
evidence raises a genuine dispute of material fact as to whether these defendants
retaliated against Holmberg. See Ylst, 351 F.3d at 1289-90 (reversing summary
judgment where a legitimate prison procedure may have been used as a pretext to
retaliate against an inmate for filing grievances). Accordingly, we reverse
summary judgment on Holmberg’s retaliation claim as to defendants Van Boening
and Fitzpatrick, and remand for further proceedings.
On remand, the district court should consider whether to exercise
supplemental jurisdiction over Holmberg’s state law claims concerning his MSA
access. See Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d
1176, 1183 (9th Cir. 1999).
Issues not raised on appeal, including Holmberg’s claims arising from being
labeled a “rat” and being placed on a transfer list, are waived. See Cook v. Schriro,
538 F.3d 1000, 1014 n.5 (9th Cir. 2008).
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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