Andre McRae v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRE McRAE, No. 18-17280
Plaintiff-Appellant, D.C. No. 4:15-cv-00439-RM
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
HILL, S.I.S Lt. at USP-Coleman 2; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Submitted July 8, 2020**
Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.
Federal prisoner Andre McRae appeals pro se from the district court’s
*
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).
summary judgment in his Federal Tort Claims Act (“FTCA”) action alleging
claims arising from an attack on McRae by a fellow inmate. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. JL Beverage Co., LLC v. Jim Beam
Brands Co., 828 F.3d 1098, 1104 (9th Cir. 2016). We affirm.
The district court did not abuse its discretion by denying McRae’s requests
for additional discovery pursuant to Fed. R. Civ. P. 56(d) and to continue summary
judgment because McRae did not diligently pursue discovery during the time
allotted by the district court. See Fed. R. Civ. P. 56(d); Burlington N. Santa Fe R.
Co. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 773-74
(9th Cir. 2003) (lack of diligence in discovery supports denial of request to
continue summary judgment).
The district court properly granted summary judgment on the ground of a
lack of subject matter jurisdiction because defendants are immune from liability on
McRae’s claims under the “discretionary function” exception to the FTCA. See
28 U.S.C. § 2680(a); United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (the
discretionary function exception covers acts that are “discretionary in nature” and
“based on considerations of public policy”). In Alfrey v. United States, 276 F.3d
557, 565 (9th Cir. 2002), we held that a prison official’s judgment concerning what
steps to take in response to a threat involves the kind of discretion protected by the
discretionary function exception. The undisputed facts of this case fall squarely
2 18-17280
within Alfrey.
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).
AFFIRMED.
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