Lewis Harry, Jr. v. Anna Jacobs ( 2016 )

FILED
NOT FOR PUBLICATION APR 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS A. HARRY, Jr., No. 14-16726
Plaintiff - Appellant, D.C. No. 4:10-cv-00736-CKJ
v.
MEMORANDUM*
ANNA M. JACOBS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Arizona state prisoner Lewis A. Harry, Jr., appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendant
Talley violated his First Amendment rights. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo summary judgment on the basis of qualified
*
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).
immunity. McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th Cir. 2009).
We affirm.
The district court properly granted summary judgment for Talley on the
basis of qualified immunity because it would not have been clear to every
reasonable official that it was unlawful under the circumstances to temporarily take
possession of religious property to allow for approval by the chaplain and to not
ensure the property was returned earlier. See Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2080, 2083 (2011) (discussing qualified immunity and noting that a right is clearly
established only if “every reasonable official would have understood that what he
is doing violates that right” (citation and internal quotation marks omitted)); see
also Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (elements of a free
exercise claim).
The district court did not abuse its discretion in granting Talley’s request to
file a second motion for summary judgment to further develop the record. See
Hoffman v. Tonnemacher, 593 F.3d 908, 911-12 (9th Cir. 2010) (setting forth
standard of review and explaining that “allowing a party to file a second motion for
summary judgment is logical, and it fosters the just, speedy, and inexpensive
resolution of suits” (citation and internal quotation marks omitted)).
We do not consider the merits of Harry’s remaining claims because Harry
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does not challenge the basis for their dismissal.
AFFIRMED.
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