Adrien Espinoza v. Unknown Stewart ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIEN JOSHUA ESPINOZA, No. 16-16032
Plaintiff-Appellant, D.C. No. 4:13-cv-01998-DCB
v.
MEMORANDUM*
UNKNOWN STEWART, named as Lt.
Stewart 2996; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Adrien Joshua Espinoza, an Arizona state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
*
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).
The district court properly granted summary judgment on Espinoza’s
retaliation claim because Espinoza failed to raise a genuine dispute of material fact
as to whether defendants took an adverse action against him because of an earlier
grievance he filed against defendant Randall. See Rhodes v. Robinson, 408 F.3d
559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the
prison context).
The district court properly granted summary judgment on Espinoza’s “threat
to safety” claim because Espinoza failed to raise a triable dispute as to whether
defendant Randall knew of and disregarded an excessive risk to his safety. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”).
The district court did not abuse its discretion by denying Espinoza’s motions
to compel and for depositions because Espinoza failed to show what material facts
would have been discovered that would have precluded summary judgment. See
Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (setting forth standard of
review and noting that “[t]he burden is on the nonmoving party . . . to show what
material facts would be discovered that would preclude summary judgment”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009);
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Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not supported by
argument in pro se appellant’s opening brief are waived).
We do not consider Espinoza’s renewed request for appointment of counsel
set forth in his opening brief. In Docket Entry No. 14, this court denied Espinoza’s
motion for appointment of counsel and ordered that no motions for
reconsideration, clarification, or modification of the denial shall be filed or
entertained.
AFFIRMED.
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