FILED
NOT FOR PUBLICATION DEC 5 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD E. PHILIPPI, Jr., No. 13-16990
Plaintiff - Appellant, D.C. No. 3:11-cv-00272-LRH-
VPC
v.
VALAREE OLIVAS; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Donald E. Philippi, Jr., a Nevada state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
prison officials violated his constitutional rights by confiscating his property. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo cross motions for
*
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).
summary judgment. Guatay Christian Fellowship v. County of San Diego, 670
F.3d 957, 970 (9th Cir. 2011). We may affirm on any basis supported by the
record. Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th
Cir. 2009). We affirm.
Summary judgment for defendants on Philippi’s due process claim was
proper because Philippi failed to raise a genuine dispute of material fact as to
whether defendants did not provide him with the process that he was due in
connection with the confiscation of property that he possessed in violation of
prison regulations. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982)
(due process must be provided when a state procedure causes the deprivation of a
property right). Moreover, to the extent that the confiscation was an unauthorized
intentional deprivation of property, the district court properly granted summary
judgment for defendants because an adequate post-deprivation remedy exists under
Nevada state law. See Nev. Rev. Stat. §§ 41.031, 41.0322, 209.243; Barnett v.
Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (“negligent or intentional
deprivation of a prisoner’s property is not cognizable under § 1983 if the state has
an adequate post deprivation remedy”).
The district court did not abuse its discretion in denying Philippi’s further
discovery requests, which Philippi made after a dispositive motion had been fully
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briefed. See Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (setting
forth standard of review); Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th
Cir. 1994) (additional discovery is only proper if movant diligently pursued
previous discovery opportunities and files a declaration showing how allowing
additional discovery would preclude summary judgment).
The district court did not abuse its discretion by concluding that many of
Philippi’s exhibits were irrelevant to the issues before the court. See Orr v. Bank
of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (standard of review for district
court’s rulings concerning evidence in a summary judgment motion; district court
must be affirmed “unless its evidentiary ruling was manifestly erroneous and
prejudicial”).
Because Philippi states in his “Motion to Inform,” filed on March 25, 2014,
that he no longer challenges the district court’s dismissal of his claims alleging
violations of the Religious Land Use and Institutionalized Persons Act and the
First Amendment, we do not address any arguments concerning those claims.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
We grant in part and deny in part defendants’ motion to strike, filed on April
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16, 2014. To the extent that defendants seek to strike Philippi’s “Supplement to
the Opening Brief” and “Addendum” thereto, the motion is granted. To the extent
that defendants seek to strike Philippi’s “Motion to Inform the Court,” the motion
is denied.
We treat Philippi’s reply brief, filed on June 16, 2014, and “Addendum to
Appellants Optional Reply Brief,” received June 19, 2014, as one complete reply
brief. The Clerk shall file Philippi’s “Addendum to Appellants Optional Reply
Brief,” received on June 19, 2014.
AFFIRMED.
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