Salvador Solis v. McKessen , 465 F. App'x 709 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SALVADOR SOLIS, No. 10-17083
Plaintiff - Appellant, D.C. No. 1:05-cv-00345-JMR
v.
MEMORANDUM *
McKESSEN,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John M. Roll, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Salvador Solis, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging retaliation and
excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to exhaust
*
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).
administrative remedies); Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (per
curiam) (summary judgment). We may affirm on any ground supported by the
record, Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1076-77 (9th Cir. 2003), and we affirm.
To the extent that Solis claimed that McKessen retaliated against him for
exercising his First Amendment rights by slamming a cell door on his finger and
calling him a “rat” or “snitch” in front of other inmates, the district court properly
dismissed the retaliation claim because Solis failed to exhaust his administrative
remedies. See Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (discussing the
level of factual specificity required in a grievance to establish exhaustion of an
inmate’s administrative remedies).
To the extent that Solis exhausted claims raised in his amended complaint
concerning allegedly retaliatory harassment by McKessen, dismissal was proper
because Solis failed to raise a genuine dispute of material fact as to whether
McKessen’s actions chilled his First Amendment rights. See Rhodes v. Robinson,
408 F.3d 559, 567-69, n.11 (9th Cir. 2005) (listing the five elements of a retaliation
claim and discussing the chilling element).
Summary judgment was proper as to Solis’s excessive force claim because
Solis failed to raise a genuine dispute of material fact as to whether McKessen used
2 10-17083
more than de minimis force. See Hudson v. McMillian, 503 U.S. 1, 10 (1992)
(“The Eighth Amendment’s prohibition of cruel and unusual punishments
necessarily excludes from constitutional recognition de minimis uses of physical
force, provided that the use of force is not of a sort repugnant to the conscience of
mankind.” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Solis’s request for
additional discovery because Solis failed to satisfy the requirements of Fed. R. Civ.
P. 56(d). See Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th
Cir. 2006) (setting forth standard of review and requirements under former Fed. R.
Civ. P. 56(f)); see also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se
litigants must follow the same rules of procedure that govern other litigants.”).
The district court did not abuse its discretion by denying Solis’s motions for
appointment of counsel because Solis failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement).
Solis’s remaining contentions are unpersuasive.
We do not consider Solis’s contentions raised for first time on appeal. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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