Ruben Garcia, Jr. v. R. Blahnik

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 2018
• Docket: 17-55600
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RUBEN DARIO GARCIA, Jr., No. 17-55600

Plaintiff-Appellant, D.C. No. 3:14-cv-00875-LAB-BGS

v. MEMORANDUM* R. BLAHNIK; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted October 4, 2018 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

Ruben Dario Garcia, Jr., a California state prisoner, appeals pro se from the

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

retaliation related to his filing of grievances. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Ford v. City of Yakima, 706 F.3d 1188, 1192 (9th

* 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). Cir. 2013). We may affirm on any basis supported by the record. Gordon v.

Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.

Summary judgment was proper as to Garcia’s claims of retaliation based on

the Form 128-B General Chronos filed by Estes, Blahnik, and Canada because

Garcia failed to raise a genuine issue of material fact as to whether the General

Chronos constituted an adverse action. See Rhodes v. Robinson, 408 F.3d 559,

567–68 (9th Cir. 2005) (defining elements of a First Amendment retaliation claim

in the prison context); see also Skoog v. County of Clackamas, 469 F.3d 1221,

1231–32 (9th Cir. 2006) (retaliation plaintiff must prove that defendant took action

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

Amendment activities” (quoting Mendocino Envtl. Ctr. v. Mendocino Cty., 192

F.3d 1283, 1300 (9th Cir.1999))).

The district court properly granted summary judgment on Garcia’s claims of

retaliation based on the filing of rules violation reports by Blahnik and Flores

because Garcia failed to raise a genuine issue of material fact as to whether the

filing of the reports failed to advance a legitimate correctional goal. See Brodheim

v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (“To prevail on a retaliation claim, a

prisoner must show that the alleged action ‘did not reasonably advance a legitimate

correctional goal.’” (quoting Rhodes, 408 F.3d at 568)).

The district court properly granted summary judgment as to Garcia’s claim

2 17-55600 of retaliation based on his removal from the Men’s Advisory Council because

Garcia failed to raise a genuine issue of material fact as to whether his removal

failed to advance a legitimate correctional goal. See Brodheim, 584 F.3d at 1271.

Summary judgment was proper as to Garcia’s claims of retaliation against

various supervisors for their role in processing, approving, and screening of rules

violation reports, because Garcia failed to raise a genuine issue of material fact as

to whether any of the supervisors’ actions were because of Garcia’s protected

conduct. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“[T]he

plaintiff must allege a causal connection between the adverse action and the

protected conduct.”). We reject as unsupported by the record Garcia’s contentions

against Seibel. Additionally, the district court properly granted summary judgment

as to Garcia’s claims of supervisory liability because Garcia failed to raise a

genuine issue of material fact as to whether any supervisors were personally

involved in any alleged retaliation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th

Cir. 2011) (requirements for establishing supervisory liability).

The district court correctly granted summary judgment as to Garcia’s

retaliation claim against Cariman for restraining and temporarily placing him in a

holding cell. Taking all inferences in Garcia’s favor, there is no genuine dispute of

material fact as to whether Cariman acted without an appropriate purpose. Garcia

had previously interrupted the orderly process of the medication line and accused

3 17-55600 the nurse of endangering inmates’ health and safety. When he raised the same

objections on July 24, 2013, he created a similar disruption, causing Cariman to

remove him from the line. Cariman’s response to Garcia’s behavior was fitting

under the circumstances. As the district court noted, “Cariman’s ‘day-to-day’

decision to remove Garcia from the pill line is the type of call Sandin [v. Conner,

515 U.S. 472, 482 (1995)] says courts need to avoid second guessing. Instead, the

court should ‘afford appropriate deference and flexibility to state officials trying to

manage a volatile environment.’” Garcia v. Blahnik, No. 14CV875-LAB (BGS),

2017 WL 1161225, at *3 (S.D. Cal. Mar. 29, 2017) (quoting Sandin, 515 U.S. at

482). A medication line in a prison is undoubtedly a “volatile environment” which

cannot tolerate prisoner interference.

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

a third extension of time to file his opposition to defendants’ motion for summary

judgment. See Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047 (9th Cir.

2015) (setting forth standard of review).

We do not consider matters “not specifically and distinctly raised and argued

in [the] opening brief.” See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009) (quoting Int’l Union of Bricklayers & Allied Craftsman Local Union No. 20

v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985)).

AFFIRMED.

4 17-55600