Theodore Stevens v. Sheryl Foster

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2018
• Docket: 17-15757
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THEODORE STEVENS, No. 17-15757

Plaintiff-Appellant, D.C. No. 3:14-cv-00368-MMD- VPC v.

SHERYL FOSTER; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Nevada state prisoner Theodore Stevens appeals pro se from the district

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

claims arising from his transfer and placement in administrative segregation. We

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

* 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). denial of leave to amend. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d

1034, 1041 (9th Cir. 2011). We affirm.

The district court did not abuse its discretion by denying Stevens leave to

file a second amended complaint because further amendment would be futile. See

id. (dismissal without leave to amend is proper “where a plaintiff’s proposed

amendments would fail to cure the pleading deficiencies and amendment would be

futile”); see also Sandin v. Conner, 515 U.S. 472, 486 (1995) (concluding that

“discipline in segregated confinement did not present the type of atypical,

significant deprivation” required to create a liberty interest).

In his opening brief, Stevens failed to challenge the district court’s grant of

summary judgment for defendants, and therefore Stevens waived any challenge to

summary judgment. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(“[A]rguments not raised by a party in its opening brief are deemed waived.”);

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture

arguments for an appellant, and a bare assertion does not preserve a claim . . . .”).

AFFIRMED.

2 17-15757