Chancellor Wade v. County of Sacramento , 447 F. App'x 842 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHANCELLOR WADE, No. 10-16271
Plaintiff - Appellant, D.C. No. 2:04-cv-01711-GEB-
DAD
v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
California state prisoner Chancellor Wade appeals pro se from two pre-
judgment orders in his 42 U.S.C. § 1983 action alleging that defendants’ failure to
give him a pork-free diet and offer Islamic religious services while he was a
pretrial detainee at the Sacramento County Main Jail violated federal and state
*
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).
laws. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion the district court’s rulings denying a continuance of summary judgment
pending discovery and denying leave to amend. Tatum v. City and Cnty. of San
Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (continuance); Johnson v.
Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (leave to amend). We affirm.
The district court did not abuse its discretion in denying Wade leave to file a
third amended complaint to add claims against both existing and voluntarily
dismissed defendants based on previously known facts where his case had been
pending for two years. See Johnson, 356 F.3d at 1077-78 (listing factors upon
which leave to amend can be denied); Chodos v. West Publ’g Co., 292 F.3d 992,
1003 (9th Cir. 2002) (no abuse of discretion in denying leave to amend where new
facts allegedly learned in discovery were available to plaintiff much earlier).
The district court did not abuse its discretion in declining to amend motion
and discovery deadlines in its scheduling order because Wade did not establish that
additional discovery would either preclude summary judgment for defendants or
warrant summary judgment for him. See Tatum, 441 F.3d at 1100-01 (no abuse of
discretion in denying continuance where plaintiff failed to show how further
discovery would preclude summary judgment). Similarly, the district court did not
abuse its discretion in declining to continue defendants’ summary judgment motion
2 10-16271
because Wade suffered no prejudice when the court instead granted in part his
motion to compel discovery and gave him additional time to oppose summary
judgment. Cf. Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001) (no
abuse of discretion in denying trial continuance that caused no prejudice).
To the extent that Wade attempts to challenge summary judgment on his
claims for supervisory § 1983 liability and negligence, Wade waived the right to
appeal these issues by failing to file timely objections to the magistrate judge’s
findings and recommendation regarding summary judgment. See Martinez v. Ylst,
951 F.2d 1153, 1156 & n.4 (9th Cir. 1991) (failure to object to determinations
reviewed de novo is a factor to be weighed in favor of finding waiver on appeal);
cf. also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (appellant who
failed to object to magistrate judge’s findings and did not raise the issue until reply
waived the issue on appeal).
Wade’s remaining contentions are unpersuasive.
AFFIRMED.
3 10-16271