Jean Miller v. Butte County Sheriff's Departm ( 2011 )

FILED
NOT FOR PUBLICATION OCT 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEAN MILLER, No. 08-17293
Plaintiff - Appellant, D.C. No. 2:06-cv-00489-JAM-
DAD
v.
BUTTE COUNTY SHERIFF’S MEMORANDUM *
DEPARTMENT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Jean Miller appeals pro se from the district court’s summary judgment in her
42 U.S.C. § 1983 action alleging constitutional violations associated with her
incarceration in the Butte County Jail. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
We affirm.
The district court properly granted summary judgment on Miller’s claim that
her placement in jail rather than in the Sheriff’s Work Alternative Program
(“SWAP”) violated her due process rights because Miller conceded that she did not
have a liberty interest in participating in SWAP, and the record established that the
program is a privilege granted at the discretion of the Sheriff’s Department. See
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972) (due process claim
cognizable only if there is a constitutionally protected liberty or property interest).
The district court properly granted summary judgment on Miller’s First
Amendment retaliation claim because Miller did not raise a triable dispute that her
placement in county jail instead of SWAP did not serve a legitimate correctional
goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth
five-factor test for First Amendment retaliation); Pratt v. Rowland, 65 F.3d 802,
806-07 (9th Cir. 1995) (prisoner bears burden of proving absence of legitimate
correctional goals for alleged retaliatory conduct).
The district court properly granted summary judgment on Miller’s Eighth
Amendment claim because Miller did not raise a genuine dispute of material fact as
to whether any of the defendants were deliberately indifferent to her medical
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needs. See Wilson v. Seiter, 501 U.S. 294, 297 (1991) (inmate must establish that
prison officials “possessed a sufficiently culpable state of mind” to implicate the
Eighth Amendment); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (a
difference of opinion about medical care is “insufficient, as a matter of law, to
establish deliberate indifference”); see also Corales v. Bennett, 567 F.3d 554, 570
(9th Cir. 2009) (“[T]he district court has the authority to decide an issue on
summary judgment sua sponte, if the losing party was on notice to come forward
with its evidence.”).
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Miller’s state law malpractice claims against
California Forensic Medical Group after dismissing all of the federal claims. See
Acri v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir. 1997).
Miller’s remaining contentions, including allegations regarding judicial bias,
bodily privacy, and her request for the reversal of her convictions, are
unpersuasive.
We do not consider issues raised for the first time on appeal. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Miller’s pending motion to correct the record is denied.
AFFIRMED.
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