Luis Urenda-Bustos v. Brian Williams, Sr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS URENDA-BUSTOS, No. 19-15765
Plaintiff-Appellant, D.C. No.
2:16-cv-02165-JCM-NJK
v.
BRIAN WILLIAMS, SR.; et al., MEMORANDUM*
Defendants-Appellees,
and
HOLISWORTH; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 3, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
*
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).
Luis Urenda-Bustos appeals both the adverse summary judgment ruling on
his retaliation claim against the Nevada Department of Corrections (“NDOC”),
NDOC caseworker Ira Hollingsworth, and Correctional Officer Bryan Wilson and
the dismissal of his excessive force claim against Senior Correctional Officer David
Foley. Urenda-Bustos maintains that Hollingsworth and Wilson brought retaliatory
disciplinary charges against him because he filed an excessive force grievance
against Foley. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Nothing in the record indicates Hollingsworth’s involvement in filing the
disciplinary charge. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)
(requiring “[a]n assertion that a state actor took some adverse action against an
inmate” to prove First Amendment retaliation). The evidence instead suggests Foley
alone filed it. Nor can Hollingsworth’s failure to report Foley’s abusive behavior as
required by NDOC regulations—an omission that preceded both Urenda-Bustos’s
grievance and Foley’s disciplinary charge—reasonably be said to implicate
Hollingsworth.
Qualified immunity bars Urenda-Bustos’s retaliation claim against Wilson.
Wilson did not violate a “clearly established” legal right merely by serving as the
disciplinary hearing officer. See Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in
2
the situation he confronted.”). And we find no authority for Urenda-Bustos’s
suggestion that a disciplinary hearing officer must be licensed in the practice of law
before invoking qualified immunity.
Finally, the district court did not abuse its discretion in dismissing Foley for
lack of personal service. See In re Sheehan, 253 F.3d 507, 511 (9th Cir. 2001).
Urenda-Bustos had ninety days from the filing of his complaint to serve Foley. See
Fed. R. Civ. P. 4(m). The court alerted Urenda-Bustos to this deadline and explained
that he could serve Foley from prison by filing a motion requesting service, after
which the court would direct the United States Marshals Service to serve Foley at
his last known address, which had already been filed under seal with the court. But
he never did. The court did not err, then, in rejecting his pro se status, incarceration,
or inability to personally learn Foley’s address as good cause to extend the service
deadline. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we
construe pleadings liberally in their favor, pro se litigants are bound by the rules of
procedure.”).
AFFIRMED.
3