Robert Jenkins v. Caplan , 548 F. App'x 505 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT LEE JENKINS, JR., No. 12-15918
Plaintiff- Appellant, D.C. No. 5:02-cv-05603-RMW
v.
MEMORANDUM*
CAPLAN, C/O; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
California state prisoner Robert Lee Jenkins, Jr., appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants retaliated against him and subjected him to excessive force. We have
*
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).
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 on Jenkins’s First
Amendment retaliation claim because Jenkins failed to raise a genuine dispute of
material fact as to whether defendants retaliated against him for filing grievances
and a lawsuit, and whether their actions advanced no legitimate correctional goal.
See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (“[A] plaintiff must
show that his protected conduct was the ‘substantial’ or ‘motivating’ factor behind
the defendant’s conduct.” (citation and internal quotation marks omitted)); Pratt v.
Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (plaintiff must show allegedly
retaliatory action did not advance legitimate correctional goals); see also Cafasso,
U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011)
(“To survive summary judgment, a plaintiff must set forth non-speculative
evidence of specific facts, not sweeping conclusory allegations.”).
The district court properly granted summary judgment on Jenkins’s Eighth
Amendment excessive force claim because Jenkins failed to raise a genuine dispute
of material fact as to whether defendants used more than a de minimis amount of
force when moving him to and from a gurney. See Hudson v. McMillian, 503 U.S.
2 12-15918
1, 9-10 (1992) (de minimis use of force generally does not violate Eighth
Amendment).
The district court properly granted summary judgment on Jenkins’s claims
against supervisory defendants because Jenkins failed to raise a genuine dispute of
material fact as to whether these defendants were personally involved in any
constitutional violation or whether there was a causal connection between their
conduct and any such violation. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th
Cir. 2011) (discussing the requirements for establishing supervisory liability.)
Jenkins’s contention regarding suing defendants in their individual
capacities is unpersuasive.
We do not consider issues raised for the first time on appeal or raised for the
first time in the reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999).
AFFIRMED.
3 12-15918