Keith Davis v. Washington State Doc ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH ADAIR DAVIS, No. 17-35943
Plaintiff-Appellant, D.C. No. 3:16-cv-05129-BHS
v.
MEMORANDUM*
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS, Secretary and
Assistant Secretary; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted August 18, 2021**
Before: D.W. NELSON, CANBY, and SILVERMAN, Circuit Judges.
Washington state prisoner Keith Adair Davis appeals pro se from the district
court’s summary judgment for defendant prison officials in Davis’ action alleging
violations of his civil rights and the American with Disabilities Act. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Albino v. Baca, 747 F.3d
1162, 1168 (9th Cir. 2014), and we affirm.
The district court properly granted summary judgment on Davis’ supervisory
liability claims because Davis failed to raise a genuine dispute of material fact as to
whether any supervisory defendants personally participated in any violation of
Davis’ constitutional rights. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798
(9th Cir. 2018).
The district court properly granted summary judgment on Davis’ retaliation
claims because Davis failed to raise a genuine dispute of material fact as to
whether any defendant engaged in retaliatory conduct, whether his speech was
chilled as a result of defendants’ actions, or whether the allegedly adverse actions
did not advance legitimate goals of the institution. Wood v. Yordy, 753 F.3d 899,
905 (9th Cir. 2014) (finding that “mere speculation that defendants acted out of
retaliation is not sufficient”); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995);
Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); Barnett v. Centoni, 31
F.3d 813, 816 (9th Cir. 1994).
The district court properly granted summary judgment on Davis’ Eighth
Amendment claims challenging the conditions of his confinement. First, Davis’
claims that defendants verbally harassed him are not colorable because verbal
threats and harassment do not constitute a constitutional violation. Gaut v. Summ,
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810 F.2d 923, 925 (9th Cir. 1987). Second, summary judgment on Davis’ claims
that he did not receive wheelchair accessible housing was proper because Davis
failed to raise a triable issue of fact whether he was denied appropriate housing in
wheelchair accessible cells or reasonable alternative accommodations. Johnson v.
Lewis, 217 F.3d 726, 731–33 (9th Cir. 2000). Third, summary judgment on Davis’
claim that he was exposed to asbestos or lead paint was proper because Davis
failed to raise a triable issue of fact whether any defendant was deliberately
indifferent to Davis’ exposure to an unreasonably high level of either toxin.
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The district court properly granted summary judgment on Davis’ Eighth
Amendment claims challenging medical care because Davis failed to raise a
genuine dispute of material fact as to whether any defendant knew of and
disregarded an excessive risk to Davis’ health or safety. Toguchi v. Chung, 391
F.3d 1051, 1057, 1060 (9th Cir. 2004). The district court properly determined that
Davis’ allegations reflected, at best, a difference of medical opinion, which is
insufficient to show deliberate indifference. Id.Summary judgment was proper on Davis’ Fourteenth Amendment claim that
he was excluded from a disciplinary hearing because Davis had no protected right
to attend the hearing after Davis was removed for being abusive to staff, and the
record reflected that Davis waived his right to call witnesses or to present witness
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statements. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974).
The district court properly granted summary judgment on Davis’ ADA
claims because Davis failed to raise a genuine dispute of material fact as to
whether defendants failed to provide Davis either with wheelchair accessible
housing and showers, or with reasonable alternative accommodations. See, e.g,
A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir.
2016).
The district court properly granted summary judgment on Davis’ claim that
he was denied access to a grievance process, because Davis has no constitutional
right to one. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.
Adams, 855 F.2d 639, 640 (9th Cir. 1988).
The district court properly granted summary judgment on Davis’ civil
conspiracy claims because Davis merely alleged that the defendants were “in
league” with one another, without explaining the substance of the alleged
conspiracy. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999);
Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989).
The district court properly dismissed Davis’ access to court claims because
Davis failed to demonstrate evidence that he suffered an actual injury. Lewis v.
Casey, 518 U.S. 343, 349 (1996) (setting forth standard of review and elements of
an access to courts claim).
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The district court did not abuse its discretion in denying Davis’ discovery
motions for additional time to conduct discovery because Davis’ motion for
additional time to conduct discovery failed to identify what discovery he sought, or
why he had not completed discovery during the discovery period, and his motion
to compel related to discovery requests that were untimely. Century 21 Real
Estate Corp. v. Sandlin, 846 F.2d 1175, 1181 (9th Cir. 1988) (setting forth standard
of review and addressing motion for extension of time); Laub v. U.S. Dep’t of
Interior, 342 F.3d 1080, 1084 (9th Cir. 2003) (motion to compel).
The district court did not abuse its discretion in overruling his objections to
the magistrate judge’s report and recommendation, or in denying Davis’ motion for
reconsideration, after Davis rehashed arguments previously made, or came forward
with only irrelevant new evidence. U.S. v. Howell, 231 F.3d 615, 621–23 (9th Cir.
2000); Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993) (standard of review).
We decline to consider matters not specifically and distinctly raised and
argued 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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