NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON LEE SUTTON, No. 15-35712
Plaintiff-Appellant, D.C. No. 2:13-cv-05064-SMJ
v.
MEMORANDUM*
BERNARD WARNER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Jason Lee Sutton, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo, Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988), and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirm. We may affirm on any ground supported by the record, Thompson v. Paul,
547 F.3d 1055, 1058-59 (9th Cir. 2008).
The district court properly granted summary judgment for defendants in
their official capacity because Sutton failed to raise a genuine dispute of material
fact as to whether a policy or custom of Washington State was a moving force
behind the alleged violations. See Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(“[I]n an official-capacity action . . . a governmental entity is liable under § 1983
only when the entity itself is a moving force behind the deprivation[.]” (citation
and internal quotation marks omitted)).
Summary judgment for defendants Franklin and Warner was proper because
Sutton failed to raise a triable dispute as to whether they knew of or personally
participated in the alleged violations. See Preschooler II v. Clark County Sch. Bd.
of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (a person is liable under § 1983
“if he does an affirmative act, participates in another’s affirmative act, or omits to
perform an act which he is legally required to do that causes the deprivation of
which complaint is made” (citation and internal quotation marks omitted)); Starr v.
Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“[W]hen a supervisor is found liable
based on deliberate indifference, the supervisor is being held liable for his or her
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own culpable action or inaction, not held vicariously liable for the culpable action
or inaction of his or her subordinates.”)
Summary judgment for defendants Ruiz, Penrose, Clark, and Young, was
proper because Sutton failed to raise a triable dispute as to whether they acted with
deliberate indifference, and as to whether their actions were the actual and
proximate cause of Sutton’s injury. See Farmer v. Brennan, 511 U.S. 825, 837
(1994) (deliberate indifference requires that “the official knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference”); Leer, 844 F.2d at 634 (summary
judgment was appropriate where inmates failed to raise a triable dispute
concerning the causal connection between the individual prison official’s actions
and the violation).
The district court did not abuse its discretion by implicitly denying Sutton’s
motion for sanctions and “motion for relief” seeking discovery. See Goodman v.
Staples The Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011) (setting
forth standard of review for motions for sanctions); Preminger v. Peake, 552 F.3d
757, 768 n. 10 (9th Cir. 2008) (setting forth standard of review for discovery
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rulings).
The district court did not abuse its discretion by denying Sutton’s motion to
reconsider because Sutton did not identify any grounds for relief from the
judgment. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d
1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for
reconsideration under Federal Rule of Civil Procedure 59(e)).
Sutton’s motion for appointment of counsel is denied.
AFFIRMED.
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