FILED
NOT FOR PUBLICATION JUL 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWIN D. MCMILLAN, No. 08-55356
Plaintiff - Appellant, D.C. No. 2:03-cv-01857-GPS-
FFM
v.
DENNIS CARPENTER, Commander; et MEMORANDUM *
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Edwin D. McMillan, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants retaliated against him for filing grievances and denied him access to 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.
Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (per curiam). We affirm in
part, vacate in part, and remand.
The district court properly dismissed McMillan’s due process claim against
the county defendants for allegedly losing his property because he had an adequate
post-deprivation remedy under California law. See Barnett, 31 F.3d at 816 (“[A]
negligent or intentional deprivation of a prisoner’s property fails to state a claim
under section 1983 if the state has an adequate post deprivation remedy.”). The
district court properly dismissed McMillan’s access to courts claim against the
county defendants because McMillan did not allege facts sufficient to show an
actual injury. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (access to courts claim
requires showing of actual injury); see also Edwards v. Marin Park, Inc., 356 F.3d
1058, 1065 (9th Cir. 2004).
The district court properly granted summary judgment to the state
defendants on McMillan’s access to courts claim because he failed to raise a triable
issue as to whether he suffered an actual injury as a result of defendants’ alleged
conduct. See Lewis, 518 U.S. at 351.
The district court did not abuse its discretion by granting the county
defendants relief from an entry of default after finding good cause. See Brady v.
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United States, 211 F.3d 499, 504 (9th Cir. 2000) (a district court’s discretion is
especially broad when setting aside entry of default, rather than default judgment).
The district court did not abuse its discretion by denying McMillan’s
motions to appoint counsel because the case did not present exceptional
circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004).
The district court did not abuse its discretion by denying McMillan’s
untimely motion to amend his complaint. See Pisciotta v. Teledyne Indus., 91 F.3d
1326, 1331 (9th Cir. 1996) (“Leave to amend is entrusted to the sound discretion of
the trial court and will be reversed only when such discretion has been abused.”).
The district court did not abuse its discretion by denying McMillan’s motion
to deem facts admitted where the defendants had already filed supplemental
answers. See Fed. R. Civ. P. 36(a)(6) (“On finding that an answer does not comply
with this rule, the court may order either that the matter is admitted or that an
amended answer be served.”).
The district court granted summary judgment to the state defendants on
McMillan’s retaliation claim because it concluded that McMillan had not raised a
triable issue that any defendant had taken an adverse action against him or that he
was injured. We affirm summary judgment as to state defendants Speer and
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Hartly, whose only contact with McMillan was through the prison grievance
procedure. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability
under section 1983 arises only upon a showing of personal participation by the
defendant.”).
We vacate summary judgment as to state defendants Dukellis, Logandice,
and Jischke. According to McMillan’s sworn declaration, he filed a grievance
against Logandice and Jischke, and was shortly thereafter threatened by Logandice
and scheduled to be transferred. While waiting to board the bus, McMillan was
scratched from the transfer list. He states that the defendants were glaring at him,
and that Dukellis and Logandice told him there were “too many bodies.”
Dukellis’s declaration implies that he had some control over scratching inmates.
McMillan also declared that even though he was scratched, his property, including
his legal materials, was transferred. This happened repeatedly, resulting in the lack
of access to his legal materials for more than a year while his habeas case was
pending. The defendants were responsible for transferring inmate property. These
facts, read in the light most favorable to McMillan, raise a triable issue as to
whether defendants took adverse actions against McMillan and caused him injury.
See Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003) (“[A] chilling effect on a
prisoner’s First Amendment right to file prison grievances is sufficient to raise a
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retaliation claim.”); see also Rhodes v. Robinson, 408 F.3d 559, 567 n.11 (9th Cir.
2005) (“[H]arm that is more than minimal will almost always have a chilling
effect.”). Accordingly, we vacate summary judgment as to defendants Dukellis,
Logandice, and Jischke, and remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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