Mustafa Wright v. N. Grannis

FILED
NOT FOR PUBLICATION
AUG 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MUSTAFA WRIGHT, No. 14-56643

Plaintiff - Appellant, D.C. No. 3:09-cv-02566-JLS-
MDD
v.

N. GRANNIS, Chief of Appeals for MEMORANDUM*
CDCR; SILVA H. GARCIA, Chief
Deputy Warden; E. A. CONTRERAS,
Associate Warden; OFFICE OF WATCH
COMMANDER; E. MARRERO, Captain;
CHIEF MEDICAL OFFICER; OFFICE
OF REGISTERED NURSES; P. A.
CORTEZ, Correctional Counselor II;
ABAD, Correctional Counselor I; D.
SMITH, Correctional Officer,

Defendants - Appellees.

Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding

Submitted August 15, 2016**
San Francisco, California

*
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).
Before: THOMAS, Chief Judge, and HAWKINS, and McKEOWN, Circuit Judges.

Mustafa Wright, a state prisoner proceeding pro se, appeals a district court

order granting summary judgment in favor of the defendants. Wright brought suit

under 42 U.S.C. § 1983 alleging that five prison officials violated his Eighth and

Fourteenth Amendment rights by acting with deliberate indifference to a known

risk to Wright’s safety. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Wright claims that he was denied proper notice regarding the legal

consequences of a motion for summary judgment. Wright’s claim that he was

entitled to notice from the court, not the moving party, is explicitly foreclosed by

an en banc opinion of this court, which concluded that: “Klingele’s requirement

that ‘[d]istrict courts are obligated to advise prisoner pro per litigants of Rule 56

requirements,’ may be met by the summary judgment movant providing the

prisoner with notice.” Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en

banc) (quoting Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988)).

Wright also argues that the district court abused its discretion in refusing to

extend the discovery period before ruling on the summary judgment motion. After

allowing Wright to seek discovery several times, the magistrate judge found that

the defendants and third parties had responded to the subpoenas. Wright did not

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present any substantiated reason why further discovery was necessary, and the

district court did not abuse its discretion in moving forward with the case. See

United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002) (“The

district court’s decision not to allow further discovery pursuant to Rule 56(f) [now

Rule 56(d)] is reviewed for an abuse of discretion.”).

Finally, Wright claims the district court erred in granting summary judgment

on his Eighth Amendment claims. Wright alleges that the prison officials’ decision

to place him with a cellmate whom Wright alleges was sexually violent constituted

“‘deliberate indifference’ to a substantial risk of serious harm” in violation of the

Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Even taking

the evidence in the light most favorable to Wright as the non-moving party, a

reasonable jury could not find that his cellmate actually harmed him or otherwise

posed an objectively substantial risk of serious harm to him. Accordingly, the

district court did not err in granting summary judgment for defendants. See id. at

834 (“For a claim (like the one here) based on a failure to prevent harm, the inmate

must show that he is incarcerated under conditions posing a substantial risk of

serious harm.”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’

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that is, if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.”).

Wright’s July 15, 2016 motion for judicial notice is denied as moot.

AFFIRMED.