Gregory Harris v. James Dzurenda ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY L. HARRIS, No. 19-16841
Plaintiff-Appellant, D.C. No. 2:18-cv-00294-MMD-
CBC
v.
JAMES DZURENDA; et al., MEMORANDUM*
Defendants-Appellees,
Appeal from the United States District Court
for the District of Nevada
Miranda Du, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Nevada state prisoner Gregory L. Harris appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging federal claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391
*
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).
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
F.3d 1051, 1056 (9th Cir. 2004) (summary judgment); Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (dismissal for lack of
personal jurisdiction under Fed. R. Civ. P. 12(b)(2)). We may affirm on any basis
supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008), and we affirm.
Summary judgment was proper on Harris’s free speech claim stemming
from regulation of his outgoing mail because Harris failed to raise a genuine
dispute of material fact that defendants were involved with the alleged interference
with his mail. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A
plaintiff must allege facts, not simply conclusions, that show that an individual was
personally involved in the deprivation of his civil rights.”) (order).
Summary judgment was proper on Harris’s medical deliberate indifference
claims against defendants Dzurenda and Aranas because Harris failed to raise a
genuine dispute of material fact as to whether defendants were deliberately
indifferent in treating his pain. See Toguchi, 391 F.3d at 1057-60 (deliberate
indifference is a high legal standard requiring a defendant be aware of and
disregard an excessive risk to an inmate’s health; medical malpractice, negligence,
or a difference of opinion concerning the course of treatment does not amount to
deliberate indifference).
The district court properly granted summary judgment on Harris’s retaliation
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claims against defendants Dzurenda, Carpenter, and Sandie because Harris failed
to raise a triable dispute as to whether defendants took an adverse action against
him because of his protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 567-
68 (9th Cir. 2004) (elements of a retaliation claim in the prison context).
The district court did not abuse its discretion by dismissing defendants
Gentry and Byrne due to Harris’s failure to serve them with process because no
further extension of time for service was warranted. See Fed. R. Civ. P. 4(m);
Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (discussing district court’s
broad discretion and factors to consider in deciding whether to extend time for
service).
The district court properly dismissed nonresident defendants Thomas and
Hininger because Harris failed to allege facts sufficient to establish that the district
court had personal jurisdiction over them. See Schwarzenegger, 374 F.3d at 801-
02 (discussing requirements for general and specific personal jurisdiction).
The district court did not abuse its discretion by denying Harris’s request for
jurisdictional discovery from Thomas or Hininger because Harris failed to explain
how discovery would reveal relevant facts. See Boschetto v. Hansing, 539 F.3d
1011, 1020 (9th Cir. 2008) (discussing standard of review and affirming denial of
jurisdictional discovery “based on little more than a hunch”).
We do not consider matters not specifically and distinctly raised and argued
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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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