Saul Pelayo v. M. Smith

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SAUL PELAYO, No. 20-16155

Plaintiff-Appellant, D.C. No. 3:18-cv-06037-RS

v. MEMORANDUM* M. SMITH, Prison Guard Employed with the California Department of Corrections & Rehabilitation (“CDCR”), in her Individual & Official Capacities; et al.,

Defendants,

and

I. SMITH, Prison Guard Employed with the CDCR, in His Individual and Official Capacities,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Submitted June 15, 2022**

* 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). Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.

California state prisoner Saul Pelayo appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging retaliation. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391

F.3d 1051, 1056 (9th Cir. 2004). We affirm.

The district court properly granted summary judgment because Pelayo failed

to raise a genuine dispute of material fact as to whether his speech was chilled as a

result of Smith filing a Form 128-B General Chrono. See Rhodes v. Robinson, 408

F.3d 559, 567-68 (9th Cir. 2005) (elements of a First Amendment retaliation claim

in the prison context); see also Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th

Cir. 2010) (in order to show retaliation, plaintiff must prove that defendant took

action “that would chill a person of ordinary firmness from continuing to engage in

the protected activity”).

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

in the opening brief, or 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.

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