NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ALLEN FRANKLIN, No. 17-55470
Plaintiff-Appellant, D.C. No. 3:11-cv-01240-JAH-BGS
v.
MEMORANDUM*
J. JIMENEZ, Lieutenant; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Gregory Allen Franklin appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging retaliation, deliberate
indifference, and due process claims. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo cross-motions for summary judgment. Guatay
*
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).
Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).
We affirm.
The district court properly granted summary judgment on Franklin’s
retaliation claims against defendants Hughey, Molina-Mata, Maciel, and Jimenez
because Franklin failed to raise a genuine dispute of material fact as to whether the
complaint he filed in 2007, which was against prison officers who are not a party
to this action, was the motivating factor behind the alleged retaliation. See Rhodes
v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a
retaliation claim in the prison context); Pratt v. Rowland, 65 F.3d 802, 807-08 (9th
Cir. 1995) (to prevail on a retaliation claim, a plaintiff’s speech must be the
motivating factor behind the retaliatory conduct).
The district court properly granted summary judgment on Franklin’s
deliberate indifference claims against defendants Hughey, Molina-Mata, and
Maciel because Franklin failed to raise a triable dispute as to whether these
defendants knew of and disregarded an excessive risk to Franklin’s serious medical
needs. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison
official is deliberately indifferent only if he or she knows of and disregards an
excessive risk to inmate health); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.
1992) (“A serious medical need exists if the failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and wanton infliction of
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pain.” (citation and internal quotation marks omitted)) overruled on other grounds
by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
The district court properly granted summary judgment on Franklin’s due
process claim against defendant Maciel relating to the failure to deliver a quarterly
package because Franklin had an adequate post-deprivation remedy under
California law. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per
curiam) (prisoner failed to state a due process claim because California provides an
adequate post-deprivation remedy).
The district court properly granted summary judgment on Franklin’s due
process claim against defendant Jimenez premised on disciplinary proceedings
because Franklin failed to raise a triable dispute as to whether he failed to receive
the proper procedural safeguards, and whether the hearing officer’s findings was
not supported by some evidence. See Superintendent v. Hill, 472 U.S. 445, 455-56
(1985) (requirements of due process are satisfied if “some evidence” supports the
disciplinary decision); Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974) (setting
forth due process requirements during a prison disciplinary proceeding).
The district court did not abuse its discretion by denying Franklin leave to
amend his complaint because amendment would have been futile and would have
caused undue prejudice to defendants. See Foman v. Davis, 371 U.S. 178, 182
(1962) (reasons justifying denial of leave to amend); Lopez v. Smith, 203 F.3d
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1122, 1130 & n. 12 (9th Cir. 2000) (en banc) (standard of review).
The district court did not abuse its discretion by denying Franklin’s request
for a preliminary injunction against prison officers at another prison. See Winter v.
NRDC, 555 U.S. 7, 24 (2008) (factors in considering whether to grant a
preliminary injunction); Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750,
752-53 (9th Cir. 1982) (explaining limited scope of review).
The district court did not abuse its discretion by denying Franklin’s request
for an extension of scheduling order deadlines. See Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087 (9th Cir. 2002) (standard of review for motion to modify
scheduling order); Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839,
844 (9th Cir. 1994) (standard of review for motion to conduct additional
discovery).
Franklin’s motion to file an oversized reply brief (Docket Entry No. 22) is
granted. The Clerk shall file the reply brief at Docket Entry No. 19.
AFFIRMED.
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