John Davis v. Paul Penzone ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN LEO DAVIS, No. 19-16070
Plaintiff-Appellant, D.C. No. 2:18-cv-01084-SMB-
CDB
v.
PAUL PENZONE, Jail Commander, et al., MEMORANDUM*
Defendants-Appellees,
and
MICHAEL, et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Arizona state pretrial detainee John Leo Davis appeals pro se from the
*
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).
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due
process and free speech violations. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213
F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Davis’s Fourteenth Amendment due
process claims arising from his conditions of confinement and a disciplinary
proceeding because Davis failed to allege facts sufficient to state any plausible
claims. See Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (setting forth
elements of Fourteenth Amendment conditions of confinement claim by pretrial
detainee); Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (pretrial detainees
may be subjected to punishment for violations of prison rules or policies as long as
they are provided a due process hearing); see also Bell v. Wolfish, 441 U.S. 520,
535-37 (1979) (explaining that some losses of freedom of movement and choice
are inherent discomforts of confinement, and not every disability imposed during
pretrial detention “amounts to ‘punishment’ in the constitutional sense”); Wolff v.
McDonnell, 418 U.S. 539, 566 (1974) (prison officials may refuse to call witnesses
based on “irrelevance, lack of necessity, or the hazards presented in individual
cases”).
The district court properly dismissed Davis’s First Amendment free speech
claim arising from his loss of telephone privileges because Davis failed to allege
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facts sufficient to state a plausible claim. See Valdez v. Rosenbaum, 302 F.3d
1039, 1049 (9th Cir. 2002) (explaining that restriction on telephone access did not
violate pretrial detainee’s free speech rights where it was rationally related to a
legitimate governmental interest); see also Bell, 441 U.S. at 546 (“[M]aintaining
institutional security and preserving internal order and discipline are essential goals
that may require limitation or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees.”).
We reject as meritless Davis’s contentions that he was held to a higher
standard as a pro se plaintiff, and that the district court improperly dismissed his
claims because they were based on de minimis injuries.
We do not consider allegations raised for the first time on appeal. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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