Anthony Burriola v. Nevada Department of Correctio

FILED
NOT FOR PUBLICATION SEP 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY J. BURRIOLA, No. 13-16836
Plaintiff - Appellant, D.C. No. 3:07-cv-00102-JCM-
VPC
v.
NEVADA DEPARTMENT OF MEMORANDUM*
CORRECTIONS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Nevada state prisoner Anthony J. Burriola appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging retaliation. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Brodheim v. Cry,
*
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).
584 F.3d 1262, 1267 (9th Cir. 2009), and we affirm.
The district court properly granted summary judgment on Burriola’s claim
relating to the withholding of his replacement typewriter because Burriola failed to
raise a genuine dispute of material fact as to whether the officials at Nevada State
Prison knew of his protected activity, and took the adverse action against Burriola
because of his protected conduct. See id. at 1269-71 (setting forth elements of a
retaliation claim in the prison context, and noting that “a plaintiff must show that
his protected conduct was the ‘substantial’ or ‘motivating’ factor behind the
defendant’s conduct” (citation and internal quotation marks omitted)); Pratt v.
Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (the relevant defendants must have
knowledge of the plaintiff’s protected activity).
The district court properly granted summary judgment on Burriola’s claim
relating to his mail because Burriola failed to raise a genuine dispute of material
fact as to whether the prison regulations concerning legal mail and general mail did
not advance legitimate correctional goals. See Turner v. Safley, 482 U.S. 78, 89
(1987) (a prison may adopt regulations that infringe on an inmate’s constitutional
rights if the regulations are “reasonably related to legitimate penological
interests”); O’Keefe v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) (“[T]he
prevention of criminal activity and the maintenance of prison security are
2 13-16836
legitimate penological interests which justify the regulation of both incoming and
outgoing prisoner mail.”). Moreover, Burriola was permitted at all times to
correspond with his sister by phone and general mail. See O’Keefe, 82 F.3d at 326(“Where other avenues remain available for the exercise of the asserted right,
courts should be particularly conscious of the measure of judicial deference owed
to corrections officials.” (citation and internal quotation marks omitted)).
AFFIRMED.
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