Antonio Doyle v. Howard Skolnik , 362 F. App'x 584 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO DOYLE, No. 08-17048
Plaintiff - Appellant, D.C. No. 3:07-cv-00594-BES-
RAM
v.
HOWARD SKOLNIK; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Nevada state prisoner Antonio Doyle appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging violations of his federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
LSS/Research
due process rights and of state law in connection with his placement on an
alternative meal program for three days. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo the dismissal under 28 U.S.C. § 1915A,
Ramirez v. Galaza, 334 F.3d 850, 853 (9th Cir. 2003), and for an abuse of
discretion the district court’s denial of the motion to reconsider, Sch. Dist. No. 1J,
Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We
may affirm on any ground supported by the record. Pritikin v. Dep’t of Energy,
254 F.3d 791, 796 (9th Cir. 2001). We affirm.
The district court properly screened Doyle’s action under the Prison
Litigation Reform Act. See 28 U.S.C. § 1915A(a) (requiring screening of
complaints in civil actions “in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity”).
Doyle has failed to state a viable procedural due process claim because he
has not alleged a deprivation that imposed an “atypical and significant hardship”
on him in relation to the ordinary incidents of prison life. Sandin v. Conner, 515
U.S. 472, 484 (1995).
The district court properly dismissed Doyle’s claims of negligence and
intentional infliction of emotional distress because he has not stated viable claims
under Nevada law. See Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172,
LSS/Research 2 08-17048
1175 (Nev. 2008) (setting forth elements of a negligence claim); Dillard Dep’t
Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev. 1999) (discussing requirements
of a claim for intentional infliction of emotional distress). Moreover, because
Doyle has alleged no viable claims of tortious conduct against any subordinate, he
has not stated a viable claim of respondeat superior. See Kornton v. Conrad, Inc.,
67 P.3d 316, 317 (Nev. 2003) (per curiam).
The district court did not abuse its discretion in denying Doyle’s motion for
reconsideration because he did not identify any grounds which would justify relief
from judgment. See Sch. Dist. No. 1J, 5 F.3d at 1263 (setting forth grounds for
reconsideration).
We decline to consider whether the district judge should have recused
himself because Doyle has not shown either good cause why he did not file an
affidavit seeking recusal under 28 U.S.C. § 144 or exceptional circumstances why
we should consider this contention for the first time on appeal. See Weiss v. Sheet
Metal Workers Local No. 544 Pension Trust, 719 F.2d 302, 304 (9th Cir. 1983)
(per curiam).
Doyle’s remaining contentions are unpersuasive.
AFFIRMED.
LSS/Research 3 08-17048