Saul Pelayo v. M. Smith ( 2022 )

NOT FOR PUBLICATION FILED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.
2 20-16155