FILED
NOT FOR PUBLICATION NOV 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT L. ROSE, No. 06-35988
Plaintiff - Appellant, D.C. No. CV-04-00052-M-DWM
v.
MEMORANDUM *
TOM SCOTT; EARL STRUEBECK;
JOHN HODGE; MONTANA
DEPARTMENT OF CORRECTIONS,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 6, 2009
Portland, Oregon
Before: O’SCANNLAIN and N.R. SMITH, Circuit Judges, and WOLLE, ** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Charles R. Wolle, Senior United States District Judge
for the Southern District of Iowa, sitting by designation.
Robert Rose appeals from the district court’s entry of summary judgment
dismissing his 42 U.S.C. § 1983 action. Proceeding pro se, he alleged that
defendants Strubeck and Hodge, two Montana probation officers, subjected him to
probation conditions that were unauthorized and improper, damaging him in
several respects. The facts are known to the parties and are not repeated here,
except as necessary to explain our decision that affirms the district court’s grant of
summary judgment. Rose has not appealed the district court’s dismissal of his
claims against defendants Tom Scott and Montana Department of Corrections,
rulings grounded in prosecutorial immunity and the Eleventh Amendment to the
U.S. Constitution.
We read liberally Rose’s complaint and other papers he filed in the district
court, affording him as an incarcerated pro se civil rights plaintiff the benefit of
any doubt. Klingele v. Eikenberry, 849 F.2d 409, 413 (9th Cir. 1988). We find no
merit, however, in the several grounds he asserts for reversing the district court’s
well-reasoned summary judgment ruling.
Rose’s lawsuit filed on November 3, 2003, alleged that Strubeck and Hodge,
in supervising him, knew they were enforcing conditions of probation regarding
drug and alcohol use that the Montana sentencing court had not imposed. He
contended they subjected him to unlawful arrest and imprisonment, deprived him
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of a timely preliminary hearing in a Montana state court, and committed acts
constituting denial of due process, malicious prosecution, libel, and conspiracy
against him. The district court granted defendants’ summary judgment motion
because Rose, presented no reliable evidence that either Strubeck or Hodge had
known the probation conditions they enforced against him had not been authorized
by the Montana judge who had sentenced him in 1995.
Our review of the grant of summary judgment is de novo. Taylor v. List,
880 F.2d 1040, 1044 (9th Cir. 1989). We review for abuse of discretion both the
magistrate judge’s decision to deny Rose’s request for additional discovery, see
Garrett v. City & County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987),
and the district court’s decision to deny his request for additional time to object to
the magistrate judge’s findings and recommendation, United States v. Flynt, 756
F.2d 1352, 1358, amended by 764 F.2d 675 (9th Cir. 1985). We first address the
substantive issues concerning each of Rose’s pleaded claims, then the several
procedural issues Rose presents in his appeal.
I
Rose pleaded that Hodge and Strubeck intentionally caused him to be
subjected to unauthorized probation conditions, leading to Due Process violations
consisting of deprivation of liberty and deliberate indifference to his constitutional
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rights. The district court found Rose presented no reliable evidence for this claim.
We agree. Rose gave vague deposition testimony in 2005 that he had disputed his
probation conditions with Hodge before his 2001 arrests. But this testimony
contradicted Rose’s testimony at his 2001 revocation hearing that he had not
discussed his probation terms with Hodge. Rose’s 2001 testimony was consistent
with the affidavits Hodge and Strubeck presented. The district court correctly held
Rose’s 2005 testimony was a sham insufficient to create a genuine fact issue about
whether Hodge knew the probation conditions were unauthorized. See Nunez v.
City of Los Angeles, 147 F.3d 867, 870–71 (9th Cir. 1998) (“[Plaintiff’s] own
words betray him.”); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.
1991).
Rose contends that Strubeck is also liable because he demonstrated
indifference to Rose’s rights by failing properly to supervise Hodge. We disagree.
Principles of respondeat superior do not apply to section 1983 suits, see Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1948–49 (2009); therefore, Strubeck is not liable for
Hodge’s actions. Rose also argues that Strubeck is liable because he failed to train
his subordinates to recognize improper probation conditions. This argument fails
because Rose has provided no evidence that Strubeck had any reason to believe
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that the probation conditions supplied to his subordinates might sometimes be
improper. Thus, we conclude that the district court properly dismissed this claim.
Rose pleaded that Strubeck and Hodge failed to provide him a preliminary
hearing until 121 days after his arrest for probation violations. But the district
court correctly held that Rose never requested a hearing and neither officer had a
duty to provide him a preliminary hearing before the revocation hearing itself. A
121-day delay in providing a preliminary hearing does not in itself violate the U.S.
Constitution. See United States v. Santana, 526 F.3d 1257, 1259–61 (9th Cir.
2008).
Rose pleaded that Strubeck and Hodge libeled him by providing incorrect
information about his arrest to a local newspaper. No evidence in the record
suggests either officer provided any information to media reporters.
Rose pleaded that the conduct of Strubeck and Hodge constituted malicious
prosecution and conspiracy to harm him. These claims are also without merit
because Rose presented no evidence that either officer intentionally engaged in
conduct that would be actionable.
II
Rose faults the district court for denying him adequate time to conduct
discovery so he could file an adequate, fact-based response to the summary
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judgment motion. But the record demonstrates Rose had twenty-seven months to
engage in discovery after filing his lawsuit, including four months after defendants
served their summary judgment motion. Moreover, after a magistrate judge
recommended that summary judgment be granted, Rose knew that timely
objections were needed, requested and received an extension of time to file them,
and then filed a detailed brief and affidavit opposing summary judgment as well as
a motion to strike affidavits that defendants had presented with their motion. We
review for abuse of discretion the decisions that denied Rose’s requests for more
discovery and more time to prepare his resistance.
Rose contends that as a pro se prisoner he was entitled to written notice of
the meaning and consequences of summary judgment, relying on Rand v. Rowland,
154 F.3d 952, 957–58, 960–61 (9th Cir. 1998), and its progeny. The record
discloses, however, that Rose was well aware of the defendants’ factual and legal
basis for defeating his claims against them. Rose knew summary judgment could
end his lawsuit and knew he was obligated to file an evidence-based response.
Rose filed an extensive response to the defendants’ summary judgment motions,
elaborately explaining his reasons for believing he was entitled to a jury trial. The
district court did not abuse its discretion in providing Rose no more information
about what summary judgment entailed, no more time to do discovery, and no
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more time to respond to the defendants’ well-documented motions for summary
judgment. Therefore, the district court’s grant of summary judgment for
defendants is
AFFIRMED.
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