Timothy Whiting v. Chp

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2024
• Docket: 23-55135
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TIMOTHY LEWIS WHITING, No. 23-55135

Plaintiff-Appellant, D.C. No. 5:18-cv-02652-CAS-JEM

v. MEMORANDUM* CALIFORNIA HIGHWAY PATROL, Department of the; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Submitted November 20, 2024**

Before: CANBY, TALLMAN, and CLIFTON, Circuit Judges.

Timothy Lewis Whiting appeals pro se from the district court’s summary

judgment in his 42 U.S.C. §§ 1981 and 1983 action arising from an incident at a

highway rest stop. We have jurisdiction under 28 U.S.C. § 1291. We review de

* 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). Whiting’s request for oral argument, set forth in the opening brief, is denied. novo. Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021).

We affirm.

The district court properly granted summary judgment for defendant

Ceballos because Whiting failed to raise a genuine dispute of material fact as to

whether he was intentionally treated differently from others similarly situated

without a rational basis for the difference in treatment, or whether he was

intentionally discriminated against on the basis of his race. See Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (standard for “class

of one” equal protection claim); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir.

2003) (requirements for equal protection claim based on membership in protected

class); Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989) (a § 1981 claim

requires a showing of intentional discrimination on account of race). We reject as

unsupported by the record Whiting’s contention that the district court relied on

video evidence submitted by Ceballos in granting summary judgment.

The district court did not abuse its discretion in permitting the withdrawal of

Ceballos’s deemed admissions in light of his late-filed responses, because the

district court reasonably determined that withdrawal would promote the

presentation of the merits of the action and would not prejudice Whiting. See Fed.

R. Civ. P. 36(b); Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007)

(standard of review).

2 23-55135 The district court did not abuse its discretion in denying Whiting’s motion

for disqualification of District Judge Snyder or Magistrate Judge McDermott

because Whiting failed to establish any basis for disqualification. See United

States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (setting forth standard

of review and discussing standard for recusal under 28 U.S.C. §§ 144 and 455).

We reject as unsupported by the record Whiting’s contentions that the district court

was biased against him.

Ceballos’s motion for leave to transmit physical exhibit (Docket Entry No.

18) is denied as unnecessary.

AFFIRMED.

3 23-55135