Allan Morgal v. Edward Williams ( 2015 )

FILED
NOT FOR PUBLICATION JUL 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLAN KENNETH MORGAL, No. 14-15490
Plaintiff - Appellant, D.C. No. 4:12-cv-00280-CKJ
v.
MEMORANDUM*
EDWARD WILLIAMS, Sergeant; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Arizona state prisoner Allan Kenneth Morgal appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging various constitutional
violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (summary judgment);
*
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).
Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C.
§ 1915A). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in
part, reverse in part, and remand.
The district court properly dismissed Morgal’s First Amendment retaliation
claims against Jacobs, Schroeder, and Williams, to the extent that they were based
on his transfer to another prison, his removal from his job, and loss of good time
credits, because Morgal failed to allege facts sufficient to show that these actions
did not advance legitimate penological interests. See Brodheim v. Cry, 584 F.3d
1262, 1269 (9th Cir. 2009) (setting forth elements of a retaliation claim in the
prison context); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)
(although pro se pleadings are to be liberally construed, a plaintiff must present
factual allegations sufficient to state a plausible claim for relief).
Dismissal of Morgal’s due process claim based on his removal from his paid
work assignment and the loss of privileges was proper because these allegations do
not give rise to a constitutionally protected liberty or property interest. See Sandin
v. Conner, 515 U.S. 472, 484 (1995) (requiring “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life” or a restraint that
exceeds the prisoner’s sentence in “an unexpected manner” to state a liberty
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interest); Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (there is no liberty or
property interest in prison employment).
The district court properly dismissed Morgal’s Eighth Amendment
deliberate indifference claim because Morgal failed to allege facts sufficient to
show that any defendant was deliberately indifferent to his health. See Colwell v.
Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (a prison official is deliberately
indifferent only if he or she “knows of and disregards an excessive risk to inmate
health” (internal citations and quotation marks omitted)); see also Hebbe, 627 F.3d
at 341-42.
The district court properly dismissed Morgal’s access-to-courts claim
because Morgal failed to allege facts sufficient to show that he suffered an actual
injury as the result of defendants’ conduct. See Lewis v. Casey, 518 U.S. 343,
348-53 (1996) (access-to-courts claim requires showing that the defendant’s
conduct caused actual injury to a non-frivolous legal claim).
The district court granted summary judgment on Morgal’s excessive force
claim, concluding that Williams’s use of force was an overreaction, but not
malicious or sadistic. Viewing the evidence in the light most favorable to Morgal,
Morgal raised a genuine dispute of material fact by presenting evidence that
Williams slammed his face against the desk and twisted his arm, despite
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Williams’s concession that no use of force was necessary. See Hudson v.
McMillian, 503 U.S. 1, 7 (1992) (“[T]he core judicial inquiry” in resolving an
Eighth Amendment excessive force claim is “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm[.]”).
The district court also erred in granting summary judgment on Morgal’s
First Amendment retaliatory assault claim against Williams because there is a
genuine dispute of material fact as to whether Williams’s actions advanced a
legitimate penological interest. See Brodheim, 584 F.3d at 1269.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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