Mario Noyola v. Kerri Adler

FILED
NOT FOR PUBLICATION FEB 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO NOYOLA, No. 13-35820
Plaintiff - Appellant, D.C. No. 2:12-cv-00196-RMP
v.
MEMORANDUM*
KERRI ADLER, Lt.; SCOTT PONOZZO,
Sgt., individually and in their official
capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, Chief Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Washington state prisoner Mario Noyola appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging, among other
things, due process and equal protection violations in connection with prison
*
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).
officials’ 30-day suspension of his visitation rights as a pretrial detainee. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Nev. Dep’t of Corr. v.
Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), and we affirm.
The district court properly granted summary judgment on Noyola’s due
process claim because Noyola failed to raise a genuine dispute of material fact as
to whether he had a protected right to visits from friends or family. See Wilkinson
v. Austin, 545 U.S. 209, 222 (2005) (state may create a liberty interest through
statutes, prison regulations, and policies); Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460-61 (1989) (Due Process Clause does not guarantee unfettered
visitation rights to inmates).
The district court properly granted summary judgment on Noyola’s equal
protection claim because Noyola failed to raise a genuine dispute of material fact
as to whether he was intentionally and without a rational basis treated differently
than any similarly situated detainee. See N. Pacifica LLC v. City of Pacifica, 526
F.3d 478, 486 (9th Cir. 2008) (elements of equal protection claim).
The district court did not abuse its discretion by denying Noyola’s motion to
continue defendants’ summary judgment motion until Noyola received additional
discovery because he failed to show how the additional discovery was necessary to
defeat summary judgment. See Fed. R. Civ. P. 56(d); Blough v. Holland Realty,
2 13-35820
Inc., 574 F.3d 1084, 1091 (9th Cir. 2009) (denial of continuance to conduct further
discovery appropriate when the district court considers the merits of the motion
and concludes that there is no point to pursuing the requested discovery); Tatum v.
City & County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006) (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).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
AFFIRMED.
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