Joe Assyd v. Adoc

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE M. ASSYD, No. 18-15610
Plaintiff-Appellant, D.C. No. 4:17-cv-00507-JAS-PSOT
v.
MEMORANDUM*
ARIZONA DEPARTMENT OF
CORRECTIONS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Joe M. Assyd, an Arizona state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal for failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes,
*
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).
213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, vacate in part, and remand.
The district court properly dismissed Assyd’s claims against defendants
Trinity, Inc. and Corizon Health, Inc. because Assyd failed to allege facts
sufficient to show that defendants’ policies or customs caused the alleged
violations. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139-40 (9th Cir.
2012) (setting forth elements of a § 1983 claim against a private entity performing
a government function); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
(setting forth elements of a medical deliberate indifference claim).
The district court properly dismissed Assyd’s claims against defendant Ryan
because Assyd failed to allege facts sufficient to show that Ryan was personally
involved in the alleged constitutional deprivations or that a sufficient causal
connection exists between Ryan’s conduct and the alleged constitutional
violations. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (discussing
the requirements for supervisory liability under § 1983).
The district court properly dismissed Assyd’s claim against defendants
Judge McNamee and Judge Snow because the claim arises out of defendants’
judicial acts. See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999) (“Judges
. . . are absolutely immune from damages for acts performed within their judicial
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capacities.” (emphasis omitted)).
The district court properly dismissed the claims against defendants Renolds
and Robles arising from the confiscation of Assyd’s personal property because
Assyd had an adequate post-deprivation remedy under Arizona law. See Hudson v.
Palmer, 468 U.S. 517, 533, 535 (1984) (holding that deprivation of property does
not violate due process if a meaningful post-deprivation remedy is available and
explaining that state tort actions are meaningful post-deprivation remedies); see
also Ariz. Rev. Stat. § 12-821.01.
Assyd alleged that defendant Mattos refused to accept his grievance. The
district court erred by construing this allegation as a due process claim rather than
a First Amendment claim. See O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir.
1996) (“Prisoners have a constitutional right to petition the government for redress
of their grievances. . . . This right extends to administrative arms and units of the
government.” (citations omitted)). Assyd also alleged a retaliation claim, but he
was not provided with notice of the deficiencies of this claim prior to dismissal.
See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth
elements of a retaliation claim in the prison context); Lucas v. Dep’t of Corr., 66
F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can
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cure the defect . . . a pro se litigant is entitled to notice of the complaint’s
deficiencies and an opportunity to amend prior to dismissal of the action.” (citation
omitted)). We vacate the judgment in part and remand for the district court to
grant Assyd leave to amend as to these claims only.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED in part, VACATED in part, and REMANDED.
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