Joseph Antonetti v. E. McDaniels ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH ANTONETTI, No. 21-16687
Plaintiff-Appellant, D.C. No. 3:16-cv-00396-MMD-
WGC
v.
E. K. McDANIELS; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Nevada state prisoner Joseph Antonetti appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
*
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).
The district court properly granted summary judgment on Antonetti’s due
process claims regarding his confinement in administrative segregation, including
any such confinement on the basis of his security threat group (“STG”)
classification, because Antonetti failed to raise a genuine dispute of material fact as
to whether he was denied any procedural protections that were due. See Toussaint
v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986), abrogated in part on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995) (setting forth due process
requirements for placement in administrative segregation and continued segregated
confinement); see also Sandin, 515 U.S. at 483-84 (a constitutionally protected
liberty interest arises only when a restraint imposes an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”).
To the extent any due process claim was based on the initial STG
classification decision, the district court properly granted summary judgment
because Antonetti failed to bring such claim within the applicable statute of
limitations. See Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014)
(explaining that the forum state’s personal injury statute of limitations applies to
§ 1983 claims and Nevada’s relevant statute of limitations is two years); see also
Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008)
(under federal law, which determines accrual, a claim accrues “when the plaintiff
knows or has reason to know of the injury which is the basis of the action”
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(citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Antonetti’s
retaliation claim regarding his confinement in administrative segregation because
Antonetti failed to raise a triable dispute as to whether defendants took an adverse
action against him because of his protected conduct. See Brodheim v. Cry, 584
F.3d 1262, 1269 (9th Cir. 2009) (elements of a First Amendment retaliation claim
in the prison context).
The district court did not abuse its discretion by denying Antonetti’s motions
for reconsideration of the order granting summary judgment because Antonetti
failed to establish any basis for such relief. See Sch. Dist. No. 1J, Multnomah
County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth
standard of review and grounds for reconsideration).
The district court did not abuse its discretion by denying Antonetti’s motions
to compel because Antonetti did not comply with the federal and local rules. See
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of
review and explaining that the district court is vested with broad discretion to
permit or deny discovery).
The district court did not abuse its discretion by denying Antonetti’s motion
for additional time to respond to the motion for summary judgment to obtain
further discovery because Antonetti failed to satisfy the requirements for a
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continuance. See Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100
(9th Cir. 2006) (explaining that a district court’s order denying additional
discovery is reviewed for an abuse of discretion and setting forth the requirements
for a continuance under Rule 56); Christian v. Mattel, Inc., 286 F.3d 1118, 1129
(9th Cir. 2002) (noting a district court’s “considerable latitude in managing the
parties’ motion practice”).
To the extent Antonetti challenges the district court’s denial of his motion
for a temporary restraining order to prevent his transfer to another prison, the issue
is moot.
We reject as meritless Antonetti’s contention that the outcome of summary
judgment would have been different had the district court considered his objections
to the report and recommendation.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider arguments incorporated by reference into the briefs. See
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (this
court reviews only issues argued specifically in a party’s opening brief); 9th Cir.
R. 28-1(b) (“Parties must not append or incorporate by reference briefs submitted
to the district court . . . or refer this Court to such briefs for the arguments on the
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merits of the appeal.”).
Antonetti’s motion for an extension of time to file a reply brief is denied as
moot because his reply brief was timely submitted.
Antonetti’s requests to appoint counsel, set forth in his motion for
appointment of counsel and opening brief, are denied.
AFFIRMED.
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