Peter McDaniels v. Kathleen Preito

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER J. MCDANIELS, No. 19-35297
Plaintiff-Appellant, D.C. No. 3:17-cv-05801-RBL
v.
MEMORANDUM*
KATHLEEN PREITO, Call out Clerk;
MARCIA MCCORMICK, Job Coordinator;
GARY BOHAN, CPM,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 17, 2020**
Before: O’SCANNLAIN, TROTT, and N.R. SMITH, Circuit Judges.
Peter McDaniels appeals from summary judgment on his 42 U.S.C. § 1983
claims of retaliation in violation of the First Amendment, discrimination in violation
of the Equal Protection Clause, and a conspiracy in violation of 42 U.S.C. §§ 1985,
*
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).
1986. The facts are known to the parties, and we do not repeat them here.
I
The district court correctly granted the prison officials’ motion for summary
judgment on McDaniels’s claims of a “spree” of retaliation for conduct protected by
the First Amendment. McDaniels’s speculative and conclusory descriptions fail to
raise a triable issue of the officials’ motives when they denied Clerk Pool privileges,
required pat searches, confronted him over non-compliance with the escort policy,
cited him for an infraction, and, ultimately, terminated him. See Wood v. Yordy, 753
F.3d 899, 905 (9th Cir. 2014). The timing of the incidents is at best circumstantial
evidence of motive and does not demonstrate motive on its own. See Pratt v.
Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
Furthermore, McDaniels fails to cite specific facts raising a triable issue as to
whether either the escort policy or Marcia McCormick and Kathleen Preito’s
recording of their perceptions of a confrontation with McDaniels in an Observation
Report did not reasonably advance the legitimate correctional goals of security and
discipline. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005); Barnett v.
Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam).
II
The district court rightly concluded that McDaniels failed to raise a triable
issue of an Equal Protection violation. McDaniels’s “class of one” theory fails at
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summary judgment because he is unable to offer specific facts establishing that other
prisoners had a similar disciplinary history, establishing that other prisoners
continued to work in the Clerk Pool after prison staff discovered that their job
screenings did not permit such employment, or that his termination lacked a rational
basis. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
III
The district court properly concluded that McDaniels failed to raise a triable
issue of a 42 U.S.C. §§ 1985, 1986 violation. “[T]he absence of any actionable
constitutional violation negates by definition the existence of a conspiracy to violate
constitutional rights.” San Diego Police Officers’ Ass’n v. San Diego City Emps.’
Retirement Sys., 568 F.3d 725, 740 (9th Cir. 2009).
AFFIRMED.
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