Jensen v. Washington State Department of Corrections

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 23 2013

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

TED JENSEN, No. 12-35921

Plaintiff - Appellant, D.C. No. 2:11-cv-01380-MJP

v.
MEMORANDUM *
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS,

Defendant,

and

CINDY KLINE, Correction Officer,
Monroe Correction Complex; BRIAN
SMITH, Correction Officer, Monroe
Correction Complex,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Submitted October 15, 2013 **

Before: FISHER, GOULD, and BYBEE, Circuit Judges.

Washington state prisoner Ted Jensen appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials

confiscated and destroyed his personal religious property in violation of his

constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Shakur v. Schriro, 514 F.3d 878, 883 (9th Cir. 2008). We affirm.

The district court properly granted summary judgment on Jensen’s First

Amendment claim because Jensen failed to raise a genuine dispute of material fact

as to whether defendants’ actions did not reasonably advance legitimate

penological interests. See Shakur, 514 F.3d at 883-84 (infringement upon inmate’s

right to free exercise is valid if reasonably related to a legitimate penological

interest).

The district court properly granted summary judgment on Jensen’s Fourth

Amendment claim because “the Fourth Amendment proscription against

unreasonable searches does not apply within the confines of the prison cell.”

Hudson v. Palmer, 468 U.S. 517, 526 (1984).

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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 The district court properly granted summary judgment on Jensen’s due

process claim for unauthorized deprivation of property because Jensen has an

adequate post-deprivation remedy under Washington state law. See Wright v.

Riveland, 219 F.3d 905, 918 (9th Cir. 2000) (no due process claim for

unauthorized deprivation of property where state provides adequate post-

deprivation remedy).

The district court properly dismissed all claims against the state of

Washington Department of Corrections because absent consent, the Eleventh

Amendment bars suits against states and their agencies. See Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the

absence of consent a suit in which the State or one of its agencies or departments is

named as the defendant is proscribed by the Eleventh Amendment.”).

The district court did not abuse its discretion by denying Jensen’s motion to

file an amended complaint because the proposed amendments would have been

futile. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (setting forth the

standard of review and explaining that denial of request to amend complaint

appropriate where amendment would be futile).

The district court did not abuse its discretion by denying Jensen’s request for

additional discovery because Jensen failed to show how the discovery he sought

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would have precluded summary judgment. See Tatum v. City & County of San

Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (setting forth standard of review

and requirements under former Fed. R. Civ. P. 56(f)).

We do not consider issues raised for the first time on appeal. See Padgett v.

Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

AFFIRMED.

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