FILED
NOT FOR PUBLICATION OCT 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMMY R. QUAIR, Sr., No. 13-16483
Plaintiff - Appellant, D.C. No. 2:11-cv-02293-JAM-
CKD
v.
GERTZ, Sheriff, MEMORANDUM*
Defendant - Appellee.
SAMMY R. QUAIR, Sr., No. 13-17233
Plaintiff - Appellant, D.C. No. 2:11-cv-02294-KJM-
KJN
v.
KORY HONEA; et al.,
Defendants - Appellees.
Appeals from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Kimberly J. Mueller, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 14, 2014**
Before: LEAVY, GOULD, and BERZON, Circuit Judges.
California state prisoner Sammy R. Quair, Sr., appeals pro se from the
district court’s summary judgments in his 42 U.S.C. § 1983 actions alleging Eighth
Amendment, access-to-courts, retaliation, and conspiracy claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Brodheim v. Cry, 584
F.3d 1262, 1267 (9th Cir. 2009). We affirm in part, vacate in part, and remand.
In No. 13-16483, we affirm summary judgment for Gertz because Quair
failed to raise a genuine dispute of material fact as to whether Gertz knew of a
substantial risk of serious harm to Quair from an assault by his cellmate. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that “a prison official
cannot be found liable under the Eighth Amendment . . . unless the official knows
of and disregards an excessive risk to inmate . . . safety”); see also Starr v. Baca,
652 F.3d 1202, 1207-08 (9th Cir. 2011) (explaining supervisory liability under
§ 1983); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010)
(the Eighth Amendment deliberate indifference standard also applies to pretrial
detainees).
**
The panel unanimously concludes the cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 13-16483 & 13-17233
However, we vacate in part and remand to allow Quair to file a first
amended complaint. See Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir.
2013) (explaining that a district court’s order granting summary judgment
“necessarily entails” a denial of a request for leave to amend, even if the district
court did not expressly rule on the request, and concluding that it was an abuse of
discretion to deny a pro se litigant leave to amend to name the correct defendants);
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth
standard of review).
In No. 13-17233, Quair alleged in his complaint that grievances and inmate
request slips were needed to establish his exhaustion of administrative remedies for
the purposes of filing Quair v. Gertz, 2:11-cv-02293-JAM-CKD. For the first time
on appeal, Quair contends that he needed copies of grievances and inmate request
slips to litigate his action against Gertz, including investigating other potential
defendants and claims. While arguments that are not raised below are generally
waived on appeal, this court has discretion to consider newly-raised arguments to
prevent manifest injustice. See Retail Flooring Dealers of Am., Inc., v. Beaulieu of
Am., LLC, 339 F.3d 1146, 1150 n.5 (9th Cir. 2003) (“[A]n appellate court can
review an issue not raised nor objected to prior to appeal if necessary to prevent
manifest injustice.”). Exercising that discretion, we vacate and remand to the
3 13-16483 & 13-17233
district court for consideration of Quair’s newly-raised argument as it relates to his
access-to-courts and retaliation claims.
However, we affirm the judgment as to Quair’s conspiracy claim because
Quair failed to raise a triable dispute as to whether defendants conspired to deny
him access to the courts. See Harris v. Roderick, 126 F.3d 1189, 1195-96 (9th Cir.
1997) (requirements of § 1983 conspiracy claim); see also Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989) (conclusory allegations are insufficient to defeat
summary judgment).
Additionally, the district court did not abuse its discretion in denying Quair’s
motion for appointment of counsel because Quair did not demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and explaining the exceptional circumstances
requirement).
We reject Quair’s contentions in No. 13-16483 and No. 13-17233 that the
district court abused its discretion in denying his request for in pro per privileges at
the jail’s law library, and his arguments regarding Rand notice.
We strongly suggest that the district court consider consolidating these
actions on remand.
4 13-16483 & 13-17233
In sum, in No. 13-16483, we remand to the district court to allow Quair to
file a first amended complaint. In No. 13-17233, we remand Quair’s access-to-
courts and retaliation claims to the district court to consider in light of Quair’s
newly-raised argument on appeal.
Appellees shall bear the costs on appeal.
In No. 13-16483, AFFIRMED in part, VACATED in part, and
REMANDED.
In No. 13-17233, AFFIRMED in part, VACATED in part, and
REMANDED.
5 13-16483 & 13-17233