FILED
NOT FOR PUBLICATION
SEP 10 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK SANCHEZ, an individual, No. 13-16284
Plaintiff - Appellant, D.C. No. 2:10-cv-01586-DGC
v.
MEMORANDUM*
UNITED PARCEL SERVICE INC., a
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 4, 2015**
San Francisco, California
Before: D.W. NELSON, CANBY, and NOONAN, Circuit Judges.
Mark Sanchez appeals the district court’s grant of summary judgment on his
discrimination and failure to accommodate claims against UPS under the
Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., and the district court’s
*
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).
failure to provide counsel during the trial of his ADA retaliation claim. We have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
Sanchez’s brief to this court makes nineteen bare assertions that are not
supported by references to facts or law. Appellate review is appropriate only of
issues that are argued “specifically and distinctly” in an appellant’s opening brief.
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986). However,
because Sanchez is proceeding as a pro se litigant, we exercise our discretion to
reach the merits of Sanchez’s first three claims. See Lim v. I.N.S., 224 F.3d 929,
934 (9th Cir. 2000).
Sanchez claims UPS had “undue corporate advantage” over him during the
litigation of his claims. This is not a cognizable legal claim.
Sanchez states he had “no courtroom protection,” and requests this court
appoint a team of attorneys to assist in litigating his case. There is no general
constitutional right to legal counsel for civil litigants. United States v. Sardone, 94
F.3d 1233, 1236 (9th Cir. 1996). The decision to appoint counsel for civil litigants
is left to the district court’s discretion. Johnson v. U.S. Treasury Dep't, 27 F.3d
415, 416 (9th Cir. 1994) (per curiam). Following the withdrawal of his attorneys,
Sanchez never formally requested the district court appoint counsel. Thus, the
district court did not abuse its discretion by not appointing counsel.
2
Sanchez states that a “factual dispute prevented summary judgment,”
without stating what fact or facts were in dispute. Construing Sanchez’s bare
assertions to argue that UPS violated the ADA by failing to provide a reasonable
accommodation for his shoulder injury, the district court did not err by granting
summary judgment for UPS. To invoke the protection of the ADA, a claimant must
be “a qualified individual” with a disability. 42 U.S.C. § 12112(a). Sanchez
claimed he was disabled because his shoulder injury limited his ability to sleep and
to lift. Sanchez testified in his deposition that although his shoulder injury
prevented him from sleeping on his left side without pain, he was able to sleep on
his right side and back. Sanchez’s physicians limited him to lifting no more than
25 pounds. Neither of these limitations substantially impaired Sanchez’s ability to
perform the major life activities of sleeping and lifting. See Head v. Glacier Nw.,
Inc., 413 F.3d 1053, 1060 (finding plaintiff’s declaration of “great difficulty
sleeping at night,” supported by specific factual allegations of extensive
limitations, sufficient to raise a genuine issue of material fact); Thompson v. Holy
Family Hosp., 121 F.3d 537, 540 (9th Cir. 1997) (per curiam) (finding that lifting
restriction of 25 pounds did not substantially impair major life activity of lifting),
superseded on other grounds by statute, ADA Amendment Act of 2008, Pub. L.
No. 110-325.
3
Liberally construing Sanchez’s bare assertions to include a claim that he was
substantially impaired in the life activity of working, we find the district court did
not err by granting summary judgment for UPS. Sanchez alleged that between
2002 and 2006 UPS failed to engage in the interactive process required by the
ADA. Because these alleged failures occurred prior to the January 1, 2009,
effective date of the ADA Amendment Act of 2008 (ADAAA), pre-amendment
law applies. See Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164
(9th Cir. 2009) (per curiam). Prior to the ADAAA, an individual was required to
demonstrate he was “significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs” in order to be considered disabled. Thornton v.
McClatchy Newspapers, Inc., 261 F.3d 789, 794-95 (9th Cir. 2001) (quoting 29
C.F.R. § 1630.2(j)(3)(i)). Sanchez presented no evidence that he was unable to
perform any jobs other than that of Feeder Driver. Having failed to present
evidence he was unable to perform a class of jobs or a broad range of jobs,
Sanchez has not proven that he had a disability under the pre-amendment ADA.
AFFIRMED.
4