FILED
NOT FOR PUBLICATION DEC 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD E. SEELY, No. 12-15386
Plaintiff - Appellant, D.C. No. 3:08-cv-00125-RCJ-
RAM
v.
JIM GIBBONS; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Nevada state prisoner Edward E. Seely appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging that defendants violated
his Eighth and Fourteenth Amendment rights, the Americans with Disabilities Act
(“ADA”), and the Rehabilitation Act. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo both a dismissal for failure to state a claim, Hebbe v.
Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and summary judgment, Toguchi v.
Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Seely’s Eighth
Amendment conditions-of-confinement claim because Seely failed to raise a
genuine dispute of material fact as to whether the failure to provide him with a
wall-mounted shower bench denied him the “minimal civilized measure of life’s
necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citations and
internal quotation marks omitted); see also Anderson v. County. of Kern, 45 F.3d
1310, 1314 (9th Cir. 1995) (indicating that lack of sanitation must be severe and
prolonged to constitute an Eighth Amendment violation).
The district court properly granted summary judgment on Seely’s Eighth
Amendment deliberate indifference claim because Seely failed to raise a genuine
dispute of material fact as to whether defendants knew of and disregarded an
excessive risk of bed sores in connection with the lack of wall-mounted shower
benches. See Toguchi, 391 F.3d at 1058 (prison officials act with deliberate
indifference only if they know of and disregard an excessive risk to inmate health).
The district court properly granted summary judgment on Seely’s equal
protection claim because Seely failed to raise a genuine dispute of material fact as
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to whether defendants intentionally and without rational basis treated him
differently from others similarly situated. See N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 486 (9th Cir. 2008) (elements of “class of one” equal protection
claim).
The district court properly granted summary judgment on Seely’s ADA and
Rehabilitation Act claims because Seely failed to raise a genuine dispute of
material fact as to whether defendants discriminated against him because of his
disability. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir.
2007) (elements of claims under Title II of the ADA and the Rehabilitation Act).
The district court properly dismissed Seely’s allegations that defendants
violated his rights because they denied or improperly handled his inmate
grievances because Seely has no right to have his grievances processed or decided
in a particular manner. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003)
(“[I]nmates lack a separate constitutional entitlement to a specific grievance
procedure.”).
The district court properly dismissed claims against defendants that are state
agencies or state officials acting in their official capacities because those claims are
barred by the Eleventh Amendment. See Flint v. Dennison, 488 F.3d 816, 824-25
(9th Cir. 2007) (Eleventh Amendment bars damages claims against state officials
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in their official capacity); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(Eleventh Amendment immunity applies to state agencies, including the
department of prisons).
The district court properly dismissed as time-barred Seely’s claim against
defendant Crawford because Seely filed this action more than two years after any
claim against Crawford accrued. See Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.
1989) (per curiam) (federal courts apply the forum state’s personal injury statute of
limitations for § 1983 claims, which is two years in Nevada) (citing Nev. Rev. Stat.
§ 11.190(4)(c),(e)).
The district court properly dismissed Seely’s claims against the supervisory
defendants because Seely failed to allege facts demonstrating their personal
involvement in any constitutional violation or a causal connection between their
conduct and any such violation. See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
2011) (discussing supervisory liability under § 1983).
The district court properly dismissed defendant Clark and Sullivan
Constructors, Inc., and Seely’s claims unrelated to the lack of wall-mounted
shower benches because Seely failed to exhaust his administrative remedies prior
to filing suit. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (holding that
“proper exhaustion” is mandatory and requires adherence to administrative
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procedural rules); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per
curiam) (requiring exhaustion of administrative remedies prior to filing suit).
The district court did not abuse its discretion by denying Seely’s motion for
reconsideration because Seely failed to establish grounds warranting
reconsideration. See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and factors for
reconsideration under Fed. R. Civ. P. 59(e) and 60(b)).
AFFIRMED.
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