Dewey Terry v. Phillip Earley

Ninth Circuit

Dewey Terry v. Phillip Earley

704 F. App'x 684

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 21, 2017

Docket17-15184

StatusUnpublished

This text of 704 F. App'x 684 (Dewey Terry v. Phillip Earley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dewey Terry v. Phillip Earley, 704 F. App'x 684 (9th Cir. 2017).

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Opinion

MEMORANDUM **

Dewey Steven Terry, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants were deliberately indifferent to his health and safety. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). We affirm.

The district court properly granted summary judgment on Terry’s Eighth Amendment claim because Terry failed to raise a genuine dispute of material fact as to whether “he himself [wa]s being exposed to unreasonably high levels” of asbestos and lead. Helling v. McKinney, 509 U.S. 25, 35-36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (setting forth evidence needed to prevail on a claim of deliberate indifference based on exposure to second-hand smoke); see also Wallis, 70 F.3d at 1077.

The district court properly granted summary judgment on Terry’s state law claims because Terry did not comply with the claim-presentment requirement of the California Government Claims Act. See Cal. Gov’t Code § 911.2; Ellis v. City of San Diego, Cal., 176 F.3d 1183, 1190 (9th Cir. 1999); California v. Superior Court (Bodde), 32 Cal.4th 1234, 13 Cal.Rptr.3d 534, 90 P.3d 116, 122 (2004).

The district court did not abuse its discretion in denying Terry’s motion to alter or amend the judgment because Terry failed to demonstrate any grounds for such relief. See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) (setting forth standard of review and requirements for granting relief under Fed. R. Civ. P. 59(e)).

Appellee Young’s request to strike settlement documents attached to Terry’s filings, set forth in his answering brief, is granted. The Clerk of Court is hereby directed to strike Exhibit 1 to Docket Entries 10,12, and 29 because all three of the exhibits contain confidential settlement information.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Dewey Steven Terry, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants were deliberately indifferent to his health and safety. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). We affirm.

The district court properly granted summary judgment on Terry’s Eighth Amendment claim because Terry failed to raise a genuine dispute of material fact as to whether “he himself [wa]s being exposed to unreasonably high levels” of asbestos and lead. Helling v. McKinney, 509 U.S. 25, 35-36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (setting forth evidence needed to prevail on a claim of deliberate indifference based on exposure to second-hand smoke); see also Wallis, 70 F.3d at 1077.

The district court properly granted summary judgment on Terry’s state law claims because Terry did not comply with the claim-presentment requirement of the California Government Claims Act. See Cal. Gov’t Code § 911.2; Ellis v. City of San Diego, Cal., 176 F.3d 1183, 1190 (9th Cir. 1999); California v. Superior Court (Bodde), 32 Cal.4th 1234, 13 Cal.Rptr.3d 534, 90 P.3d 116, 122 (2004).

The district court did not abuse its discretion in denying Terry’s motion to alter or amend the judgment because Terry failed to demonstrate any grounds for such relief. See Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003) (setting forth standard of review and requirements for granting relief under Fed. R. Civ. P. 59(e)).

Appellee Young’s request to strike settlement documents attached to Terry’s filings, set forth in his answering brief, is granted. The Clerk of Court is hereby directed to strike Exhibit 1 to Docket Entries 10,12, and 29 because all three of the exhibits contain confidential settlement information.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

99 Cal. Daily Op. Serv. 3522, 1999 Daily Journal D.A.R. 4525, 1999 Daily Journal D.A.R. 6407 Terrence Lenon Ellis v. City of San Diego, California Mayor Susan Golding, San Diego Police Department Jerry Sanders, Chief of Police John Doe 1 M. Shaw Baines D. Johnson B. Hubble D. Leach L. McEuen A. Linardi Hartson Ambulance Company John Doe 2 University of California San Diego (u.c.s.d.) Medical Center K.B. Van Hoesen and Annette "Doe"

176 F.3d 1183 (Ninth Circuit, 1999)

State v. Superior Court

90 P.3d 116 (California Supreme Court, 2004)

Wallis v. Baldwin

70 F.3d 1074 (Ninth Circuit, 1995)

Dixon v. Wallowa County

336 F.3d 1013 (Ninth Circuit, 2003)

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