Johnny Warren v. Clarence Dupnik , 585 F. App'x 354 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 7 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY LEE WARREN, No. 13-15890
Plaintiff - Appellant, D.C. No. 4:11-cv-00340-FRZ
v.
MEMORANDUM*
CLARENCE W. DUPNIK, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Arizona state prisoner Johnny Lee Warren appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional violations
while in county detention. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (summary
*
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).
judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under
28 U.S.C. § 1915A). We may affirm on any basis supported by the record,
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008),
and we affirm.
The district court properly granted summary judgment on Warren’s First
Amendment claim regarding the 28-day period while Warren awaited approval for
a pork-free diet because Warren failed to raise a genuine dispute of material fact as
to whether the verification requirements were not reasonably related to legitimate
penological interests and unduly burdened Warren’s ability to exercise his religion.
See Resnick v. Adams, 348 F.3d 763, 768-71 (9th Cir. 2003) (requiring an
application to provide a religious diet does not unduly burden a prisoner’s right to
practice his religion); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (recognizing
simplified food service as a legitimate penological interest); see also Starr v. Baca,
652 F.3d 1202, 1207 (9th Cir. 2011) (discussing the requirements for establishing
supervisory liability).
The district court did not abuse its discretion by granting summary judgment
without ordering further discovery because Warren did not establish how
additional discovery would have affected the disposition of his case. See Fed. R.
Civ. P. 56(d); Barona Grp. of the Capitan Grande Band of Mission Indians v. Am.
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Mgmt. & Amusement, Inc., 840 F.2d 1394, 1399-1400 (9th Cir. 1987) (setting forth
standard of review and explaining that movant must show specific facts he hopes
to discover and how those facts would preclude summary judgment).
Dismissal of Warren’s Eighth Amendment claims was proper because
Warren failed to allege facts sufficient to show that he was placed at substantial
risk of serious harm by the 28-day delay in approval of a pork-free diet. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate
health or safety. . . .”); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)
(Eighth Amendment requires only that prisoners receive food that is adequate to
maintain health).
Dismissal of Warren’s equal protection claim was proper because Warren
failed to allege facts sufficient to show that defendants intentionally discriminated
against him based on his religion by not offering Friday religious services. See
Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (to state an
equal protection claim, “a plaintiff must show that the defendants acted with an
intent or purpose to discriminate against the plaintiff based upon membership in a
protected class” (citation and internal quotation marks omitted)); see also Cruz v.
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Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam) (a prisoner’s reasonable
opportunity to pursue his faith does not ensure facilities or personnel identical to
other religious groups).
We reject Warren’s contention that the district court erred by not considering
on summary judgment his unsupported claim that the 28-day delay caused him to
develop additional health problems, or by not considering his alleged state
constitutional claims.
Warren’s motion for appointment of appellate counsel, filed on July 21,
2014, is denied.
AFFIRMED.
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