NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY FABRICANT, No. 18-17453
Plaintiff-Appellant, D.C. No. 4:14-cv-02008-JAS
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
LOUIS WINN, Former Warden; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Federal prisoner Danny Fabricant appeals pro se from the district court’s
*
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).
summary judgment in his Federal Tort Claims Act (“FTCA”) action alleging due
process and retaliation claims. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
As a preliminary matter, Fabricant has waived any challenge to the
substance of the district court’s summary judgment because he did not raise them
in his opening brief. See Indep. Towers of Wash. v. Washington, 350 F.3d 925,
929 (9th Cir. 2003) (“[W]e review only issues which are argued specifically and
distinctly in a party’s opening brief.” (citation and internal quotation marks
omitted)); Acosta–Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993) (issues not
supported by argument in pro se appellant’s opening brief are waived).
The district court properly dismissed Counts I through V of Fabricant’s
second amended complaint, because Fabricant failed to allege facts sufficient to
state a plausible claim for relief. See Sandin v. Conner, 515 U.S. 472, 481-82
(1995) (a prisoner has no protected liberty interest when the sanction imposed
neither extends the length of his sentence nor imposes an “atypical and significant
hardship”); Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.
2013) (a prison official is deliberately indifferent only if he or she knows of and
disregards a substantial risk of serious harm to an inmate’s health or safety);
Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (elements of a
retaliation claim in the prison context); Resnick v. Hayes, 213 F.3d 443, 447 (9th
2 18-17453
Cir. 2000) (standard of review).
The district court did not abuse its discretion by denying Fabricant’s fourth
motion to extend time to oppose summary judgment because Fabricant failed to
establish good cause. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
607, 609 (9th Cir. 1992) (setting forth standard of review and required showing for
good cause).
The district court did not abuse its discretion by denying Fabricant’s request
to file an oversized first amended complaint because Fabricant failed to comply
with the local rules. See D. Ariz. Loc. R. 3.4; Bias v. Moynihan, 508 F.3d 1212,
1223 (9th Cir. 2007) (setting forth standard of review and explaining that this court
gives “[b]road deference” to district court’s interpretation of its local rules).
The district court did not abuse its discretion by denying Fabricant’s motion
to propound additional requests for admission because Fabricant failed to establish
prejudice. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1084, 1093 (9th Cir.
2003) (setting forth standard of review and explaining that district court’s denial of
discovery will not be disturbed except upon a clear showing of “actual and
substantial prejudice to the complaining litigant.” (citation and internal quotation
marks omitted)).
The district court did not abuse its discretion by denying Fabricant’s request
for judicial notice. See Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d
3 18-17453
668, 689 (9th Cir. 2001) (standard of review).
The district court did not abuse its discretion by denying Fabricant’s various
other requests. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807 (9th Cir. 2002)
(stating that “district courts have inherent power to control their dockets” and this
court “will reverse a district court’s litigation management decisions only if it
abused its discretion” (citation and internal quotation marks omitted)).
Fabricant’s requests to file a third amended complaint and for costs, set forth
in the opening brief, are denied.
AFFIRMED.
4 18-17453