Pablo Pina v. Warden Lewis

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2018
• Docket: 16-15645
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PABLO P. PINA, No. 16-15645

Plaintiff-Appellant, D.C. No. 5:10-cv-03784-RMW

v. MEMORANDUM* WARDEN LEWIS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding

Submitted March 12, 2018**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

California state prisoner Pablo P. Pina appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging a due process

violation and state law tort claims. We have jurisdiction under 28 U.S.C. § 1291.

We affirm.

* 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). 1. The district court correctly granted summary judgment on Pina’s due

process claim because Pina failed to raise a genuine dispute of material fact as to

whether defendant Diggle deprived him of a protected liberty interest. See Sandin

v. Conner, 515 U.S. 472, 483–84 (1995) (a constitutionally protected liberty

interest arises when a restraint imposes an “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life”); see also Duffy v.

Riveland, 98 F.3d 447, 452 (9th Cir. 1996) (noting de novo review standard for a

grant of summary judgment).

2. The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Pina’s state law claim against defendant Lewis. See

Fichman v. Media Ctr., 512 F.3d 1157, 1162–63 (9th Cir. 2008) (district court does

not abuse its discretion in declining to exercise supplemental jurisdiction over state

claims after granting summary judgment on federal claims).

3. The district court did not abuse its discretion by dismissing without

prejudice Pina’s claims as to Officer Boniti and his estate because the district court

provided Pina with notice of the dismissal for failure to serve and extended the

time for service. See Fed. R. Civ. P. 4(m); In re Sheehan, 253 F.3d 507, 511 (9th

Cir. 2001) (standard of review).

4. The district court did not abuse its discretion by denying Pina’s motion to

extend discovery because Pina did not identify “specific facts that further

2 discovery would reveal, and explain why those facts would preclude summary

judgment.” Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir.

2006) (stating the standard of review and necessary requirements for continuing

discovery).

5. The district court did not abuse its discretion by denying Pina’s motion to

compel for failing to comply with local rules. See Hallett v. Morgan, 296 F.3d

732, 751 (9th Cir. 2002) (stating the standard of review and noting that district

courts have broad discretion to permit or deny discovery); see also Tri-Valley

CARES v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a

motion as the result of a failure to comply with local rules is well within a district

court’s discretion.”).

6. The district court did not abuse its discretion by granting defendants’

motion to stay discovery because the question of defendants’ immunity had not

been resolved. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (explaining

that until the “threshold immunity question is resolved, discovery should not be

allowed”); Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (stating the

standard of review and noting that staying discovery pending a decision on

immunity is not an abuse of discretion).

7. The district court did not abuse its discretion by denying Pina’s motion

for appointment of counsel because Pina did not demonstrate exceptional

3 circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (stating

the standard of review and noting that a civil litigant generally has no right to

counsel unless “exceptional circumstances” are present).

8. We reject as without merit Pina’s contentions regarding administrative

exhaustion.

9. We do not consider any matters that Pina did not specifically and

distinctly raise and argue in his opening brief, or arguments and allegations he

raises for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009).

AFFIRMED.