Kevin Kennedy v. Dan Watts ( 2022 )

NOT FOR PUBLICATION FILED
JAN 25 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN KENNEDY, No. 20-15414
Plaintiff-Appellant, D.C. No. 3:17-cv-00468-MMD-CLB
v.
MEMORANDUM*
DAN WATTS, Sheriff; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Nevada state prisoner Kevin Kennedy appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging violations of the Fourth
and Fourteenth Amendments. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Gordon v. County of Orange, 888 F.3d 1118, 1122 (9th Cir.
*
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).
2018). We affirm.
The district court properly granted summary judgment on Kennedy’s Fourth
Amendment excessive force claim because Kennedy failed to raise a genuine
dispute of material fact as to whether defendants’ actions in subjecting Kennedy to
a blood draw were unreasonable in light of the facts and circumstances. See
Graham v. Connor, 490 U.S. 386, 397-98 (1989) (setting forth the objective
reasonableness standard for excessive force determinations); Schmerber v.
California, 384 U.S. 757, 768 (1966) (explaining that the means and procedures
used to extract an arrested person’s blood must be “reasonable” under the Fourth
Amendment).
The district court properly granted summary judgment on Kennedy’s
Fourteenth Amendment failure-to-protect claim arising from his pretrial detention
because Kennedy failed to raise a triable dispute as to whether defendants caused
Kennedy’s injuries. See Castro v. County of Los Angeles, 833 F.3d 1060, 1071
(9th Cir. 2016) (en banc) (setting forth elements of a pretrial detainee’s Fourteenth
Amendment failure-to-protect claim).
The district court properly granted summary judgment on Kennedy’s
Fourteenth Amendment due process claim because Kennedy failed to raise a triable
dispute as to whether he had a protected liberty interest in not being placed in
administrative segregation. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995)
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(no due process violation if restraint imposed is not an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”); Resnick
v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (“[T]he Sandin analysis applies to
[the] due process claims” of a plaintiff convicted but awaiting sentencing.”); May
v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (“[A]dministrative segregation falls
within the terms of confinement ordinarily contemplated by a sentence.”).
We reject as meritless Kennedy’s contentions that the district court was
biased and that he was entitled to a jury trial.
We do not 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).
Kennedy’s “motion to receive documents” (Docket Entry No. 59) is granted.
The Clerk will send a copy of Kennedy’s motions for appointment of counsel
(Docket Entry Nos. 3 and 9), opening brief (Docket Entry No. 13), reply brief
(Docket Entry No. 29), motion for summary disposition (Docket Entry No. 9),
emergency motions, requests, and inquiries (Docket Entry Nos. 35, 36, 50, 55, and
56), and a copy of the docket sheet to Kennedy. All other pending motions and
requests are denied.
AFFIRMED.
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