Kenneth Reed v. Corizon Health Incorporated

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2021
• Docket: 18-17123
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENNETH W. REED, Nos. 18-17123 20-15571 Plaintiff-Appellant, D.C. No. 4:15-cv-00470-RCC v.

CORIZON, LLC, entity under contract to the State of Arizona; et al.,

Defendants-Appellees,

and

B. JOHNSTON; UNKNOWN PARTY, named as Pat Doe (fictitiously named), an administrator for Corizon LLC at ASPC Tucson,

Defendants.

Appeals from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In these consolidated appeals, Arizona state prisoner Kenneth W. Reed

appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983

action alleging deliberate indifference to his serious medical needs. We have

jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the

district court’s dismissal under its local rules. Hinton v. Pac. Enters., 5 F.3d 391,

395 (9th Cir. 1993). We may affirm on any basis supported by the record. Henry

v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). We affirm.

Although the district court erred by granting summary judgment for

defendants Corizon and Ryan based solely on Reed’s failure to file a timely

opposition to these defendants’ motion for summary judgment as required by Local

Rule 7.2(i), see Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995), summary

judgment for Ryan and Corizon was nonetheless proper, see Henry, 983 F.3d at

950 (an unopposed motion for summary judgment may be granted if the movant’s

papers are themselves sufficient to support the motion and do not on their face

reveal a genuine dispute of material fact); see also Toguchi v. Chung, 391 F.3d

1051, 1056 (9th Cir. 2004) (a prison official is deliberately indifferent only if he or

she knows of and disregards an excessive risk to inmate health).

The district court did not abuse its discretion by dismissing Reed’s claims

against defendants Johnston and Goodman because Reed failed to effect proper

service of the summons and amended complaint after being given notice and an

2 18-17123 & 20-15571 opportunity to do so. See Fed. R. Civ. P. 4(m) (outlining requirements for proper

service and explaining that a district court may sua sponte dismiss an action for

failure to serve after providing notice to the plaintiff); Ariz. R. Civ. P. 4.1-4.2

(outlining requirements for proper service); In re Sheehan, 253 F.3d 507, 511-12

(9th Cir. 2011) (setting forth standard of review and discussing Rule 4(m)’s good

cause notice standard).

The district court did not abuse its discretion by denying Reed’s motion for

reconsideration because Reed failed to establish any basis for relief. 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 Rule

59(e)).

The district court did not abuse its discretion by denying Reed’s second

motion for reconsideration because Reed had already filed a notice of appeal. See

Fed. R. Civ. P. 62.1.

Reed’s motion for correction of the record on appeal (Docket Entry No. 67

in Appeal No. 18-17123; Docket Entry No. 38 in Appeal No. 20-15571) is denied.

AFFIRMED.

3 18-17123 & 20-15571