Richard Turay v. Kelly Cunningham ( 2012 )

FILED
NOT FOR PUBLICATION OCT 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD GARRETT TURAY, No. 11-35469
Plaintiff - Appellant, D.C. No. 3:10-cv-05493-BHS
v.
MEMORANDUM *
KELLY CUNNINGHAM, Superintendent;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted October 9, 2012 **
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Richard Garrett Turay, an involuntarily committed resident of Washington’s
Special Commitment Center (“SCC”), appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging violations of the First
*
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).
Amendment, Eighth Amendment, Fourteenth Amendment, and the United Nations
Convention Against Torture. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo, Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.
2008), and we affirm.
The district court properly granted summary judgment on Turay’s First
Amendment retaliation claim because Turay failed to raise a genuine dispute of
material fact as to whether defendants’ conduct was based on a retaliatory motive.
See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) ( plaintiffs must
establish that an adverse action was taken “because of” their protected conduct).
The district court properly granted summary judgment on Turay’s equal
protection claim because Turay failed to raise a genuine dispute of material fact as
to whether he was treated differently from other similarly situated individuals. See
Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (different
treatment of unlike individuals does not support an equal protection claim).
The district court properly granted summary judgment on Turay’s Eighth
Amendment claim because Turay failed to raise a genuine dispute of material fact
as to whether defendants acted with deliberate indifference to his mental health.
See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (defendant acts with
deliberate indifference only if he knows of and disregards an excessive risk to
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plaintiff’s health and safety); see also Sharp v. Weston, 233 F.3d 1166, 1171 (9th
Cir. 2000) (requiring deference to the “professional judgment” of officials in state
institutions except where the decision is “‘such a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate that the
person responsible actually did not base the decision on such a judgment.’”
(quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982))).
The district court properly granted summary judgment on Turay’s claim
under the United Nations Convention Against Torture because the statute
implementing the Convention does not extend to alleged tortuous acts within the
United States. See 18 U.S.C. § 2340A(a) (“Whoever outside the United States
commits or attempts to commit torture shall be fined under this title or
imprisoned . . . .” (emphasis added)).
Turay’s motion to conduct de novo review, submitted on September 20,
2011, is denied as unnecessary.
AFFIRMED.
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