John Fabricius, Ii v. Maricopa County

FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN A. FABRICIUS, II, No. 09-16763
Plaintiff - Appellant, D.C. No. 2:06-cv-01105-MHM
v.
MEMORANDUM *
MARICOPA COUNTY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
John A. Fabricius, II, a pre-trial detainee, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging a First
Amendment violation based on the playing of holiday music, the denial of his due
process rights during a disciplinary hearing, and the denial of his right to access the
*
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).
courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Inouye
v. Kemna, 504 F.3d 705, 711 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment on the Establishment
Clause claim because Fabricius failed to raise a genuine issue of material fact as to
whether the playing of holiday music had a secular purpose or whether it had the
principal or primary effect of advancing religion. See Lemon v. Kurtzman, 403
U.S. 602, 612-13 (1971) (setting forth test for Establishment Clause violations).
The district court properly granted summary judgment on the due process
claim because Fabricius failed to raise a genuine issue of material fact as to
whether he was afforded the protections outlined in Wolff v. McDonnell, 418 U.S.
539, 563-70 (1974). Morever, the record supports defendant Fisher’s decision not
to call witnesses at the disciplinary hearing. See id. at 566 (prison officials may
refuse to call witnesses based on “irrelevance, lack of necessity, or the hazards
presented in individual cases”).
The district court properly granted summary judgment on the access-to-
courts claim because Fabricius failed to establish that defendant Mangan
“personally participated in or directed a violation.” James v. Rowlands, 606 F.3d
646, 653 n.3 (9th Cir. 2010); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (there is no supervisory liability in section 1983 actions).
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We have considered the remaining issues that Fabricius raises on appeal and
conclude that his contentions are unpersuasive.
AFFIRMED.
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