David Upton v. Aref Fakhoury

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2022
• Docket: 19-55811
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JAN 24 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID UPTON, No. 19-55811

Plaintiff-Appellant, D.C. No. 5:13-cv-02359-AB-PJW

v. MEMORANDUM* AREF FAKHOURY, in his individual and official capacity as Warden of California Institution for Men; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Submitted January 19, 2022**

Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.

Former California state prisoner David Upton appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (cross motions for

* 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). summary judgment); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal

pursuant to Fed. R. Civ. P. 12(b)(6)). We affirm.

The district court properly granted summary judgment for defendants

Blackmon and Payne because Upton failed to raise a genuine dispute of material

fact as to whether the sanctions imposed by these defendants caused the change in

Upton’s sentence. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no genuine issue for

trial.” (citation and internal quotation marks omitted).

The district court properly dismissed Upton’s claims against defendants

Fakhoury, Duarte, and Garcia because Upton failed to allege facts sufficient to

show that these defendants were personally involved in any alleged deprivation of

Upton’s constitutional rights or not immune from liability. See Engebretson v.

Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (holding prison officials are

immune from liability under § 1983 for enforcing a facially valid court order);

Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (because § 1983 suits do not

support vicarious liability, plaintiffs must demonstrate defendants are individually

liable for violations).

The district court properly denied Upton’s motions for judgment on the

pleadings against non-parties Williams and the California Department of

2 19-55811 Correction and Rehabilitation. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.

1983) (holding that a court “may not attempt to determine the rights of persons not

before the court”).

The district court did not abuse its discretion in striking Upton’s proposed

First Amended Complaint because the proposed complaint added claims and

defendants to the case. See Morongo Band of Mission Indians v. Rose, 893 F.2d

1074, 1079 (9th Cir. 1990) (setting forth standard of review and concluding denial

of leave to amend was justified when new claims “would have greatly altered the

nature of the litigation” and “would have required defendants to have undertaken,

at a late hour, an entirely new course of defense”).

The district court did not abuse its discretion in denying Upton’s motions to

consolidate. See Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008)

(setting forth standard of review and explaining that a district court has broad

discretion to consolidate actions).

The district court did not abuse its discretion in denying Upton’s motions to

have the United States Attorney General and United States Department of Justice

provide amicus briefs. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)

(holding district courts have broad discretion in appointing amicus curiae),

abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).

We reject as meritless Upton’s contention that the district court erred by

3 19-55811 declining to certify to the United States Attorney General the fact that Upton was

challenging the constitutionality of federal statutes.

The district court did not abuse its discretion in denying Upton’s motions for

reconsideration because Upton set forth no valid grounds for reconsideration. See

Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration

under Rules 59 and 60).

The district court properly denied Upton’s motion for attorney’s fees. See

Kay v. Ehrler, 499 U.S. 432, 435 (1991) (“[A] pro se litigant who is not a lawyer is

not entitled to attorney’s fees.”).

All pending motions and requests are denied.

AFFIRMED.

4 19-55811