Garry Gallardo v. United States ( 2016 )

FILED
NOT FOR PUBLICATION DEC 27 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARRY DAVID GALLARDO, No. 15-17192
Plaintiff-Appellant, D.C. No. 4:14-cv-02260-RCC
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Federal prisoner Garry David Gallardo appeals pro se from the district
court’s summary judgment in his Federal Tort Claims Act (“FTCA”) action
alleging negligence related to a slip and fall accident in a federal prison in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Gallardo’s
request for oral argument is denied.
Kentucky. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment because Gallardo
failed to raise a genuine dispute of material fact as to whether his alleged fall
exacerbated his knee condition or caused him injury, and he did not provide any
evidence as to causation. See Readnour v. Gibson, 452 S.W.3d 617, 620 (Ky.
2014) (setting forth elements of common-law negligence claim, including “legal
causation between the defendant’s breach and the plaintiff’s injury”); see also
United States v. Olson, 546 U.S. 43, 45-46 (2005) (holding that the United States’
liability under the FTCA is to be based on the state law liability of a private party).
Contrary to Gallardo’s contention, the district court did not err in failing to
construe his opposition to the United States’ summary judgment motion as a
motion for further discovery under Federal Rule of Civil Procedure 56(d) because
Gallardo did not request any discovery.
The district court did not abuse its discretion in striking Gallardo’s “Motion
for Court to Exercise Supplemental Jurisdiction” because this FTCA action is not
the proper vehicle for Gallardo to challenge the validity of his underlying criminal
conviction. See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 403-04 (9th
2 15-17192
Cir. 2010) (applying abuse of discretion standard when reviewing district court’s
exercise of inherent power to control docket and strike motion).
Gallardo’s request for judicial notice, filed on October 7, 2016, is denied.
AFFIRMED.
3 15-17192