Jamisi Calloway v. G. Kelly

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2018
• Docket: 15-17262
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMISI JERMAINE CALLOWAY, No. 15-17262

Plaintiff-Appellant, D.C. No. 1:11-cv-01090-LJO-SAB

v. MEMORANDUM* G. KELLY, M.D. Psychologist at Corcoran State Prison #1; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted August 08, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Jamisi Jermaine Calloway, a California state prisoner, appeals pro se from

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

constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo cross-motions for summary judgment. Guatay Christian

* 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). Fellowship v. Cty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment on Calloway’s

retaliation claims because Calloway failed to raise a genuine dispute of material

fact as to whether defendants acted with retaliatory motive or whether their

conduct failed to advance a legitimate penological purpose. See Rhodes v.

Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (setting forth elements of a

retaliation claim in the prison context); Pratt v. Rowland, 65 F.3d 802, 806 (9th

Cir. 1995) (“[A] successful retaliation claim requires a finding that the prison

authorities’ retaliatory action did not advance legitimate goals of the correctional

institution or was not tailored narrowly enough to achieve such goals.” (citation

and internal quotation marks omitted)).

The district court properly dismissed Calloway’s medical deliberate

indifference claim because Calloway failed to allege facts sufficient to show that

defendants disregarded a substantial risk of serious harm to Calloway’s health. See

Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (setting forth the elements

of a medical deliberate indifference claim); Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998) (order) (standard of review for dismissals under 28 U.S.C.

§ 1915(e)(2)(B)(ii)).

2 15-17262 The district court did not abuse its discretion by denying Calloway’s

requests for further discovery because Calloway does not show actual and

substantial prejudice. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th

Cir. 2003) (stating that “a decision to deny discovery will not be disturbed except

upon the clearest showing that the denial of discovery results in actual and

substantial prejudice to the complaining litigant” (citation and internal quotation

marks omitted)).

Calloway’s requests for oral argument and to appear by video conference

(Dkt. 29) are denied as moot.

AFFIRMED.

3 15-17262