Tidiane Kone v. Justin Brown

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2024
• Docket: 22-35797
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TIDIANE KONE, No. 22-35797

Plaintiff-Appellant, D.C. No. 3:19-cv-00307-RRB

v. MEMORANDUM* JUSTIN BROWN, Lieutenant; COX, SSgt; LAPINSKAS; KAMARA, Sgt.; FOLTZ, Officer; GACEL, Officer; JOSHUA KOMAREK; KEVIN NUSHART; DOYLE BRUECKNE; BAUER, Officer; BRIAN MORRIS; JASON BROWN; COX; P. BAUER; COOP STORE, Spring Creek Coop Store; W. LAPINSKAS,

Defendants-Appellees.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Submitted March 19, 2024** San Francisco, California

Before: FRIEDLAND, SANCHEZ, and H.A. THOMAS, Circuit Judges.

* 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). Alaska state prisoner Tidiane Kone appeals pro se from the district court’s

order denying his motion for summary judgment and granting summary judgment

to defendants-appellees in his 42 U.S.C. § 1983 action alleging violations of his

First, Eighth, and Fourteenth Amendment rights. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a grant of summary judgment. Toguchi v.

Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.1

1. The district court did not err in granting summary judgment to defendants-

appellees on Kone’s First Amendment retaliation claim against Brown and Cox,

his Eighth Amendment failure to protect claim against Komarek, Cox, and Foltz,

or his Fourteenth Amendment equal protection claim against Komarek, Cox, and

Foltz. Kone failed to raise a genuine dispute of material fact as to whether Brown

and Cox’s allegedly adverse actions were causally connected to his complaints or

advanced a legitimate correctional purpose. See Watison v. Carter, 668 F.3d 1108,

1114 (9th Cir. 2012) (setting forth the elements of a retaliation claim in the prison

context). Kone failed to raise a genuine dispute of material fact as to whether

Komarek, Cox, and Foltz were deliberately indifferent to a “substantial risk of

serious harm” to Kone’s safety. See Farmer v. Brennan, 511 U.S. 825, 834–37

1 We DENY Kone’s three motions filed on February 6, 2023, and March 22, 2023. Dkt. Nos. 19–20, 25. Because Kone filed his reply brief within fourteen days of the answering brief’s filing, we DENY as moot Kone’s motion for an extension of time to file his reply brief, filed June 8, 2023. Dkt. No. 36.

2 (1994). And Kone also failed to raise a genuine dispute of material fact as to

whether he was purposefully discriminated against on the basis of race. See

Furnace v. Sullivan, 705 F.3d 1021, 1030–31 (9th Cir. 2013).

2. To the extent Kone asserts claims that the district court dismissed in its

Third Screening Order or that he otherwise did not properly raise before the district

court, we do not consider them. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (“[A]n appellate court will not consider issues not properly raised before the

district court.”); see also id. (arguments not raised in an opening brief are

forfeited).

AFFIRMED.