Leopoldo Cardenas v. Eldon Vail , 482 F. App'x 291 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEOPOLDO CARDENAS, No. 11-35175
Plaintiff - Appellant, D.C. No. 3:09-cv-05602-RJB
v.
MEMORANDUM *
ELDON VAIL, Secretary; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Leopoldo Cardenas, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
violations of his First and Fourteenth Amendment rights. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo. Valdez v. Rosenbaum, 302 F.3d
1039, 1043 (9th Cir. 2002). We affirm.
The district court properly granted summary judgment on Cardenas’s due
process claim because Cardenas had an adequate post-deprivation remedy under
Washington state law. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994)
(per curiam) (“[A] negligent or intentional deprivation of a prisoner’s property fails
to state a claim under section 1983 if the state has an adequate post deprivation
remedy.”); see also Wash. Rev. Code §§ 72.02.045(3), 4.92.090.
The district court properly granted summary judgment on Cardenas’s First
Amendment claim because Cardenas failed to raise a genuine dispute of material
fact as to whether the prison’s mail handling policies were reasonably related to
legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987)
(discussing factors for determining whether regulation that impinges on First
Amendment rights is reasonably related to legitimate penological interests).
The district court properly granted summary judgment on Cardenas’s
retaliation claim because Cardenas failed to raise a genuine dispute as to whether
defendants’ alleged harassment was “because of” his engagement in protected
activity. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (to establish
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retaliation, prisoner must demonstrate that the adverse action was taken because of
the prisoner’s protected activity).
Contrary to Cardenas’s contention, the magistrate judge did not lack
authority to issue recommendations on the summary judgment motions. See 28
U.S.C. § 636(b)(1).
AFFIRMED.
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