NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LAWRENCE EVERETT WILGUS, No. 15-15715
Plaintiff-Appellant, D.C. No.
3:13-cv-00368-MMD-WGC
v.
BRUCE R. BANNISTER; CATHRINE MEMORANDUM*
MASTO CORTEZ; DON POAG; JOHNS,
Dr.; SCOTT, Dr.; JACK PALMER; E. K.
MCDANIELS; JAMES COX; J.
BUCHANAN; JOHN PERRY; KAREN
GEDNEY; BELLANGER; WATERS; R.
HERRERA; REX REED; ROBERT
LEGRAND, Warden; STEVE SUWE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted April 18, 2018**
San Francisco, California
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
*
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).
Lawrence Everett Wilgus, a former Nevada 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 medical needs and other claims relating to his
confinement. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Ford v. City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013). We may affirm on
any basis supported by the record, Gordon v. Virtumundo, Inc., 575 F.3d 1040,
1047 (9th Cir. 2009), and we affirm.
The district court properly granted summary judgment on Wilgus’s due
process claim regarding his classification and transfer between prisons because
Wilgus failed to raise a genuine dispute of material fact as to a protected liberty
interest. See Wilkinson v. Austin, 545 U.S. 209, 221-23 (2005) (discussing liberty
interests under the due process clause); see also Sandin v. Conner, 515 U.S. 472,
484 (1995) (state law only creates liberty interests deserving protection under the
Fourteenth Amendment's Due Process Clause when prison officials impose
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”). We reject as unsupported by the record Wilgus’s
contentions that the change in classification was a form of discipline and that it
resulted in a longer prison sentence.
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The district court properly dismissed Wilgus’s excessive force claim because
Wilgus failed to identify the John Doe defendant after completing discovery. See
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (use of John Doe defendant
permitted through the close of discovery).
The district court properly granted summary judgment on Wilgus’s
deliberate indifference claim because Wilgus failed to raise a genuine issue of
material fact as to whether defendants were aware of and disregarded an excessive
risk to Wilgus’s health. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.
2004) (elements of deliberate indifference claim).
The district court properly granted summary judgment on Wilgus’s claim of
supervisory liability because Wilgus failed to raise a genuine dispute of material
fact as to whether there was any underlying constitutional violation. See Starr v.
Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for supervisory liability
under § 1983).
The district court did not err by denying Wilgus an opportunity to amend his
complaint to add retaliation claims where Wilgus did not request an opportunity to
amend and both the amendment and discovery deadlines set in the scheduling order
had passed. See In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716,
739 (9th Cir. 2013) (“Late amendments to assert new theories are not reviewed
3 15-15715
favorably when the facts and the theory have been known to the party seeking
amendment since the inception of the cause of action.”); cf. DRK Photo v.
McGraw–Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 988-89 (9th Cir. 2017)
(recognizing good cause standard applicable to requests to amend after the
deadline set in the scheduling order has passed).
We reject as meritless Wilgus’s contentions concerning ineffective
assistance of counsel. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th
Cir. 1985) (“Generally, a plaintiff in a civil case has no right to effective assistance
of counsel.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Wilgus’s motion to supplement the record (Docket Entry No. 11) is denied.
AFFIRMED.
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