Jensen v. Washington State Department of Corrections , 543 F. App'x 691 ( 2013 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                         FILED
    FOR THE NINTH CIRCUIT                           OCT 23 2013
    MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    TED JENSEN,                                      No. 12-35921
    Plaintiff - Appellant,             D.C. No. 2:11-cv-01380-MJP
    v.
    MEMORANDUM *
    WASHINGTON STATE DEPARTMENT
    OF CORRECTIONS,
    Defendant,
    and
    CINDY KLINE, Correction Officer,
    Monroe Correction Complex; BRIAN
    SMITH, Correction Officer, Monroe
    Correction Complex,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    Marsha J. Pechman, Chief Judge, Presiding
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Submitted October 15, 2013 **
    Before:        FISHER, GOULD, and BYBEE, Circuit Judges.
    Washington state prisoner Ted Jensen appeals pro se from the district court’s
    summary judgment in his 
    42 U.S.C. § 1983
     action alleging that prison officials
    confiscated and destroyed his personal religious property in violation of his
    constitutional rights. We have jurisdiction under 
    28 U.S.C. § 1291
    . We review de
    novo. Shakur v. Schriro, 
    514 F.3d 878
    , 883 (9th Cir. 2008). We affirm.
    The district court properly granted summary judgment on Jensen’s First
    Amendment claim because Jensen failed to raise a genuine dispute of material fact
    as to whether defendants’ actions did not reasonably advance legitimate
    penological interests. See Shakur, 
    514 F.3d at 883-84
     (infringement upon inmate’s
    right to free exercise is valid if reasonably related to a legitimate penological
    interest).
    The district court properly granted summary judgment on Jensen’s Fourth
    Amendment claim because “the Fourth Amendment proscription against
    unreasonable searches does not apply within the confines of the prison cell.”
    Hudson v. Palmer, 
    468 U.S. 517
    , 526 (1984).
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    2                                        12-35921
    The district court properly granted summary judgment on Jensen’s due
    process claim for unauthorized deprivation of property because Jensen has an
    adequate post-deprivation remedy under Washington state law. See Wright v.
    Riveland, 
    219 F.3d 905
    , 918 (9th Cir. 2000) (no due process claim for
    unauthorized deprivation of property where state provides adequate post-
    deprivation remedy).
    The district court properly dismissed all claims against the state of
    Washington Department of Corrections because absent consent, the Eleventh
    Amendment bars suits against states and their agencies. See Pennhurst State Sch.
    & Hosp. v. Halderman, 
    465 U.S. 89
    , 100 (1984) (“It is clear, of course, that in the
    absence of consent a suit in which the State or one of its agencies or departments is
    named as the defendant is proscribed by the Eleventh Amendment.”).
    The district court did not abuse its discretion by denying Jensen’s motion to
    file an amended complaint because the proposed amendments would have been
    futile. See Gardner v. Martino, 
    563 F.3d 981
    , 990 (9th Cir. 2009) (setting forth the
    standard of review and explaining that denial of request to amend complaint
    appropriate where amendment would be futile).
    The district court did not abuse its discretion by denying Jensen’s request for
    additional discovery because Jensen failed to show how the discovery he sought
    3                                    12-35921
    would have precluded summary judgment. See Tatum v. City & County of San
    Francisco, 
    441 F.3d 1090
    , 1100 (9th Cir. 2006) (setting forth standard of review
    and requirements under former Fed. R. Civ. P. 56(f)).
    We do not consider issues raised for the first time on appeal. See Padgett v.
    Wright, 
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009) (per curiam).
    AFFIRMED.
    4                                   12-35921