John Miller v. S. Acosta ( 2022 )

NOT FOR PUBLICATION FILED
FEB 25 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN L. MILLER, No. 20-55879
Plaintiff-Appellant, D.C. No. 2:15-cv-02285-GW-KK
v.
MEMORANDUM*
S. ACOSTA; E. HENRY; S. LOPEZ,
individual; ABDUL WAHAB OMEIRA,
individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
California state prisoner John L. Miller appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of the
First and Fourteenth Amendments arising out of Miller’s participation in 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).
Religious Meat Alternative (“RMA”) diet program. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6).
Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly determined that defendant Acosta was entitled to
qualified immunity on Miller’s free exercise claim because Acosta’s conduct in
refusing to provide Miller with his RMA meals when Miller did not show him a
Religious Diet Card did not violate clearly established law. See Plumhoff v.
Rickard, 572 U.S. 765, 778-79 (2014) (explaining that “a defendant cannot be said
to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.”).
The district court properly dismissed Miller’s remaining claims because
Miller failed to allege facts sufficient to state any plausible claim. See Hebbe, 627
F.3d at 341-42 (holding that although pro se pleadings are to be construed liberally,
a plaintiff must present factual allegations sufficient to state a plausible claim for
relief); see also Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015)
(holding that a free exercise claim in the prison context requires a plausible
allegation that a government action substantially burdens plaintiff’s practice of his
religion and is not reasonably related to legitimate penological interests); Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (holding that a First Amendment
2 20-55879
retaliation claim in the prison context requires a plausible allegation that adverse
actions were taken because of protected conduct); Lee v. City of Los Angeles, 250
F.3d 668, 686-87 (9th Cir. 2001) (holding that an equal protection claim requires
plaintiff to allege plausibly that defendants were motivated by discriminatory
animus).
The district court did not abuse its discretion by denying Miller’s motions to
disqualify the magistrate judge and district judge because Miller failed to establish
extrajudicial bias or prejudice. See United States v. McTiernan, 695 F.3d 882,
891-92 (9th Cir. 2012) (setting forth standard of review and circumstances
requiring disqualification). We reject as without merit Miller’s contention that the
magistrate judge and the district judge conspired to reject improperly Miller’s
second motion to disqualify the district judge.
Contrary to Miller’s contention that the district court should have addressed
his Rule 60(b) motion, Miller filed the motion after his notice of appeal, and Miller
did not seek a limited remand of the case, so the district court lacked jurisdiction to
consider the motion. See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)
(vacating because the district court lacked jurisdiction over a Rule 60(b) motion
where the motion was filed after the notice of appeal and the movant did not follow
the procedure for seeking a remand of the case).
We do not consider matters not specifically and distinctly raised and argued
3 20-55879
in the opening brief or allegations raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
4 20-55879