Barry Lamon v. L. Ellis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BARRY LOUIS LAMON, No. 12-15727
Plaintiff - Appellant, D.C. No. 2:06-cv-00156-KJM-
CKD
v.
L. ELLIS; D. LORUSSO; T. PARKS, MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted August 12, 2014**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Barry Lamon (“Lamon”), a California inmate, appeals from the entry of
judgment against him in this action brought under 42 U.S.C. § 1983. We have
jurisdiction under 28 U.S.C. § 1291. 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).
1. Lamon appeals from the district court’s dismissal of his initial complaint and
its imposition of a page limit on the amended complaint. Reviewing for an abuse of
discretion, McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996), we affirm. The
district court’s page limitation was consistent with Federal Rule of Civil Procedure
8(a)(2). See id. at 1178.
2. To the extent Lamon appeals from the dismissal of claims alleged in the initial
complaint but not repleaded in the amended complaint, Lamon “effectively
abandoned” any such claims below and thus did not preserve them properly for
appeal. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14, 974
n.15 (9th Cir. 2013).
3. Because Lamon failed to present in his opening appellate brief cogent, specific,
and distinct arguments against the district court’s December 11, 2007, screening order
dismissing various claims and defendants from this action, he has waived his right to
appeal from that order. W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th
Cir. 2012); Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
4. Lamon appeals from the district court’s denial of his motions for pre-trial
counsel. Reviewing for an abuse of discretion, Richards v. Harper, 864 F.2d 85, 87
(9th Cir. 1988), we affirm. Lamon did not demonstrate the “exceptional
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circumstances” necessary for the appointment of pre-trial counsel under 28 U.S.C. §
1915(e)(1). See id.
5. Lamon appeals from the district court’s denial of his motions to relate this case
to other cases brought by Lamon in the Eastern District of California. We assume,
without deciding, that we review for an abuse of discretion. Jacobson v. Hughes
Aircraft Co., 105 F.3d 1288, 1302 (9th Cir. 1997), rev’d on other grounds, 525 U.S.
432 (1999). According “broad deference,” id., to the district court, we affirm because
Lamon failed to articulate a permissible basis on which the district court could
reassign this case under its local rules.
6. Lamon appeals from various discovery orders. Reviewing for an abuse of
discretion, Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004), we affirm. The district
court, which granted several of Lamon’s motions to compel in whole or in part,
managed the discovery process fairly. Moreover, Lamon has not shown that the
district court’s management of discovery “result[ed] in actual and substantial
prejudice.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003)
(internal quotation marks and citations omitted).
7. Lamon appeals from the district court’s denial of his motion to amend the
pleadings after the close of discovery. Reviewing for an abuse of discretion, Johnson
v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004), we affirm. The district court
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reasonably weighed the Johnson factors, id., noting that Lamon’s second motion to
amend would cause undue delay and unnecessary prejudice to the proposed
defendants.
8. Lamon appeals from the district court's denial of his motions seeking Judge
Mueller’s recusal. Reviewing for an abuse of discretion, Pesnell v. Arsenault, 543
F.3d 1038, 1043 (9th Cir. 2008), we affirm. Judge Mueller’s continuation with this
case neither prejudiced Lamon nor raised Article III concerns. See Dawson v.
Marshall, 561 F.3d 930, 933–34 (9th Cir. 2009) (holding the assignment of a district
judge to a case on which he had previously worked as a magistrate judge “violated no
law and denied [the appellant] no right”). Lamon’s remaining arguments in favor of
recusal lack merit.
9. Reviewing for an abuse of discretion, Toth v. Trans World Airlines, Inc., 862
F.2d 1381, 1385 (9th Cir. 1988), we summarily affirm the district court’s order
striking Lamon’s September 2011 motion for reconsideration and associated filings.
10. Lamon appeals the summary judgment grant in favor of Walker on the
retaliation claim. Reviewing de novo, Zeinali v. Raytheon Co., 636 F.3d 544, 547 (9th
Cir. 2011), we affirm, because Lamon has submitted no competent evidence tending
to support his assertion that Walker acted “because of” Lamon’s previous attempts to
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litigate against prison officials. Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.
2004).
11. We summarily affirm the summary judgment grant in favor of Ellis, Parks, and
Lorusso. W. Radio Servs. Co., 678 F.3d at 979 (appellate court will not consider
arguments not presented distinctly on appeal).
12. Lamon appeals the summary judgment grant in favor of Downing, Johnson,
Paizi, and Moghaddas. Reviewing de novo, we affirm. Because Lamon’s housing
classification was discretionary and otherwise comported with California’s procedural
safeguards, Defendants did not violate Lamon’s due process rights when they obtained
his informed consent to prescribe him Amantadine. Ramirez v. Galaza, 334 F.3d 850,
861 (9th Cir. 2003) (prison official’s discretion relevant to due process analysis).
Moreover, because these Defendants reasonably treated Lamon’s serious medical
need, Lamon’s deliberate indifference claim also fails. Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004) (deliberate indifference requires a showing of a
deprivation).
13. Reviewing for an abuse of discretion, Gen. Signal Corp. v. MCI Telecomms.
Corp., 66 F.3d 1500, 1507 (9th Cir. 1995), we summarily affirm the district court’s
management of the jury trial, including the appointment of pro bono trial counsel.
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14. We deny as moot Lamon’s appeals from the district court’s denials of various
motions for preliminary injunctions. See Mt. Graham Red Squirrel v. Madigan, 954
F.2d 1441, 1450 (9th Cir. 1992).
AFFIRMED.
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