William Nordholm v. Tim Barkell ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM J. NORDHOLM, No. 19-35357
Plaintiff-Appellant, D.C. No. 2:17-cv-00011-JCL
v.
MEMORANDUM*
TIM BARKELL; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding**
Submitted August 5, 2020***
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Former Montana state prisoner William J. Nordholm appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging due
process violations while he was a pretrial detainee and retaliation while he was a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
prisoner. We have jurisdiction under 28 U.S.C. § 1291. We review de novo cross-
motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085, 1090 (9th
Cir. 2016). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment for defendants on
Nordholm’s due process claim because Nordholm failed to raise a genuine dispute
of material fact as to whether defendants were required to provide him with a pre-
deprivation hearing prior to charging him with booking and bonding fees. See
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (balancing factors to determine
whether government has provided sufficient due process).
The district court properly granted summary judgment on Nordholm’s
conspiracy claim because Nordholm failed to raise a genuine dispute of material
fact as to whether defendants conspired to deprive him of his constitutional rights.
See Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (a
conspiracy claim requires the existence of an agreement or meeting of the minds to
violate constitutional rights).
However, summary judgment was improper on Nordholm’s retaliation
claim. The record reflects that, following Nordholm’s attempt to have a complaint
served on defendant Barkell, defendants Barkell, Sather, Durkin, and Staley
refused to provide additional grievance forms to Nordholm and refused to process
certain grievances he had submitted. Taking this evidence in the light most
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favorable to Nordholm, a genuine dispute of material fact exists as to whether
these defendants retaliated against Nordholm. See Brodheim v. Cry, 584 F.3d
1262, 1269-72 (9th Cir. 2009) (setting forth elements of retaliation claim and
concluding that a reasonable person “may have been chilled” by a written warning
about a prisoner’s grievances). We note that the district court expressly stated it
did not reach any issues concerning exhaustion. We reverse and remand for
further proceedings on this claim as to defendants Barkell, Sather, Durkin, and
Staley only.
The district court did not abuse its discretion by denying Nordholm’s motion
for class certification because, as a pro se litigant, Nordholm has no authority to
represent anyone other than himself. See Hawkins v. Comparet-Cassani, 251 F.3d
1230, 1237 (9th Cir. 2001) (standard of review); C.E. Pope Equity Trust v. United
States, 818 F.2d 696, 697 (9th Cir. 1987) (a pro se litigant has no authority to
appear as an attorney for others).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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