John Miller v. Daniel Sanchez

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2023
• Docket: 22-56202
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 18 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN L. MILLER, No. 22-56202

Plaintiff-Appellant, D.C. No. 2:20-cv-00006-GW-KK

v. MEMORANDUM * DANIEL SANCHEZ, Litigation Coordinator, individual; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted October 10, 2023**

Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

California state prisoner John L. Miller appeals pro se from the district

court’s judgment dismissing for failure to state a claim his 42 U.S.C. § 1983 action

alleging various constitutional claims. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (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). 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d

443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm in part,

reverse in part, and remand.

The district court properly dismissed Miller’s claims against defendants

Pfeil, Warmsley, and Afra, and Miller’s Eighth Amendment claim against

defendant Sanchez because Miller failed to allege facts sufficient to state a

plausible claim. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (to establish an

Eighth Amendment claim, a prison “official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference”); Rhodes v. Robinson, 408 F.3d 559, 567-68

(9th Cir. 2005) (setting forth elements of a First Amendment retaliation claim in

the prison context); Toguchi v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (a

prison official is deliberately indifferent only if he or she knows of and disregards

an excessive risk to inmate health; medical malpractice, negligence, or a difference

of opinion concerning the course of treatment does not amount to deliberate

indifference).

The district court dismissed Miller’s First Amendment retaliation claim

against Sanchez. However, Miller alleged that on the same day that a district court

in a different action advised the prison that Miller had an action pending against

prison officials and would need access to the law library, Sanchez, the prison’s

2 22-56202 litigation coordinator, had Miller assigned to a yard crew job that would prevent

him from being able to visit the law library and which would require him to work

outside for over seven hours a day even though Miller had recently completed

treatment for skin cancer. Miller alleged that this was the first job assignment he

had received in four years. Although a guard adjusted the hours of the job for

medical reasons after Miller got a serious sunburn, Miller alleged that the

assignment, which he understood as intended to sabotage his pending action,

chilled his desire to continue with the lawsuit. Liberally construed, these

allegations are “sufficient to warrant ordering [defendant] to file an answer.”

Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Brodheim v.

Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (explaining that to make out a First

Amendment retaliation claim, a plaintiff must show that the adverse action at issue

“would chill or silence a person of ordinary firmness from future First Amendment

activities” (citation and emphasis omitted)). We therefore reverse the dismissal of

this claim and remand for further proceedings.

The district court did not abuse its discretion by denying Miller’s motion to

disqualify the magistrate judge because Miller failed to establish extrajudicial bias

or prejudice. See United States v. McTiernan, 695 F.3d 882, 891-92 (9th Cir.

2012) (setting forth standard of review and circumstances requiring

disqualification).

3 22-56202 We reject as unsupported by the record Miller’s contentions that the district

court was biased against him or colluded with defense counsel in another case in

rendering judgment in this action.

We do not consider 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 in part, REVERSED in part, and REMANDED.

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