Patrick Funderburk v. Dwight Neven , 471 F. App'x 585 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PATRICK FUNDERBURK, No. 10-16758
Plaintiff - Appellant, D.C. No. 2:08-cv-01858-JCM-
GWF
v.
DWIGHT NEVEN; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Patrick Funderburk, a former Nevada state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that his
First Amendment rights were violated when defendants failed to provide a sack
*
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).
lunch as part of the prison’s Ramadan meal schedule. We have jurisdiction under
28 U.S.C. § 1291. We review de novo, Shakur v. Schriro, 514 F.3d 878, 883 (9th
Cir. 2008), and we affirm.
The district court properly granted summary judgment because Funderburk
failed to raise a genuine dispute of material fact as to whether defendants
substantially burdened his ability to practice his religion. See id. at 884-85 (Free
Exercise Clause is only implicated when a prison practice burdens an inmate’s
sincerely-held religious beliefs).
The district court did not abuse its discretion by denying Funderburk’s
untimely request for an extension of time to conduct discovery because Funderburk
failed to show “good cause.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-
88 (9th Cir. 2002).
Funderburk correctly contends that he did not receive a summary judgment
notice. See Rand v. Rowland, 154 F.3d 952, 956-57 (9th Cir. 1998) (en banc);
Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988). However, we take
judicial notice of the adequate warning Funderburk received in prior litigation. See
Rand, 154 F.3d at 961-62.
Funderburk’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-16758