Timothy Bertram v. C. Sizelove , 587 F. App'x 440 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY BERTRAM, No. 13-17547
Plaintiff - Appellant, D.C. No. 1:10-cv-00583-AWI-
DLB
v.
C. SIZELOVE, Correctional Officer, MEMORANDUM*
Tehachapi; J. HEINZLER, Correctional
Officer, Tehachapi,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted December 5, 2014**
Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.
Former California state prisoner Timothy Bertram appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his safety. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004), and we affirm.
The district court properly granted summary judgment because Bertram
failed to raise a genuine dispute of material fact as to whether defendant Sizelove
was deliberately indifferent to Bertram’s safety or was responsible for assigning
Bertram to an upper bunk. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(“[A] prison official cannot be found liable under the Eighth Amendment . . .
unless the official knows of and disregards an excessive risk to inmate . . .
safety.”); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (explaining causal
requirement under § 1983); see also Fed. R. Civ. P. 56(c)(4) (explaining that an
affidavit or declaration opposing summary judgment must be based on “personal
knowledge” and “set out facts that would be admissible in evidence”).
The district court did not abuse its discretion in denying Bertram’s various
discovery motions because Bertram did not demonstrate actual and substantial
prejudice. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth
standard of review and explaining that a district court’s decision to deny discovery
“will not be disturbed except upon the clearest showing that denial of discovery
results in actual and substantial prejudice to the complaining litigant” (citation and
internal quotation marks omitted)).
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The district court did not abuse its discretion in denying Bertram’s motion
for sanctions against defendant’s counsel because Bertram made no showing of
misconduct. See Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 819 (9th
Cir. 2009) (setting forth standard of review).
The district court did not abuse its discretion in denying Bertram’s motion
for reconsideration of various orders related to discovery and sanctions because
Bertram failed to demonstrate the required showing for reconsideration. See E.D.
Cal. R. 230(j) (setting forth grounds for reconsideration under the local rules);
Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir. 1993) (abuse of discretion
standard for determination of compliance with local rules); see also Sch. Dist. No.
1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)
(setting forth grounds for reconsideration under the Federal Rules of Civil
Procedure).
We reject Bertram’s contentions regarding the alleged bias of the magistrate
judges, the district court judge, and defendant’s counsel.
Bertram’s requests for action, set forth in his opening brief, are denied.
AFFIRMED.
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