FILED
NOT FOR PUBLICATION
MAY 4 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN DARIO GARCIA, Jr., No. 19-56128
Plaintiff-Appellant, D.C. No.
3:14-cv-01525-JLS-RBM
v.
K. SEELEY, D.O.; E. A. CANLAS, MEMORANDUM*
Medical Doctor; R. CLARKE; P.
NEWTON, M.D.; A. DENBELA; JODIE
RIVERA, Medical Department Inmate
Appeals Coordinator; M. GLYNN, Inmate
Medical Provider and Reviewer of Medical
and Inmate Appeal Decisions; R. COBB;
R. OLSON, Inmate Appeals Coordinator;
J. RAMIREZ, Inmate Appeals
Coordinator; R. WALKER, D.O.;
PAMELA VELARDI, Medical Services
Provider; R. SCHARFFENBERG, M.D.; I.
SEDIGHI, Medical Provider; L. MERITT,
Medical Service Provider; L. SHEPPARD,
Medical Services Provider; E. WORMAN;
JOHN AND JANE DOES, Employed in
Different Post Assignments, Medical
Service Providers; Appeals Coordinator
Staff; and Medical Health Service
Provider,
Defendants-Appellees,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and
M. MARTINEZ,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted May 3, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
California state prisoner Ruben Garcia appeals the district court’s summary
judgment in favor of various medical staff members at the Richard J. Donovan
Correctional Facility (“RJD”). He also appeals many of the district court’s earlier
orders, including its orders partially granting judgment on the pleadings and
motions to dismiss in favor of appeals and grievance personnel at RJD and medical
staff at another prison. We affirm.
The district court properly granted judgment on the pleadings and dismissed
Garcia’s Eighth Amendment deliberate indifference and Fourteenth Amendment
procedural due process claims. See Fed. R. Civ. P. 12(b)(6) & (c). Garcia did not
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2 19-56128
plausibly allege deliberate indifference to his serious medical needs. See Toguchi
v. Chung, 391 F.3d 1051, 1057–58, 1060 (9th Cir. 2004). His allegations showed
no more than a difference of opinion between himself and prison medical staff
about the appropriate way to treat his pain stemming from carpal tunnel syndrome.
See id. at 1058. Likewise, Garcia did not plausibly allege violation of his right to
due process because prisoners do not have a liberty interest in a particular
grievance procedure and the procedures used here were adequate. See Ramirez v.
Galaza, 334 F.3d 850, 860–61 (9th Cir. 2003); see also Chappell v. Mandeville,
706 F.3d 1052, 1062–63 (9th Cir. 2013).
The district court also properly granted judgment on the pleadings and
dismissed Garcia’s First Amendment retaliation and 42 U.S.C. § 1983 conspiracy
claims against prison grievance and appeals personnel. See Fed. R. Civ. P.
12(b)(6) & (c). Garcia’s allegations did not show that responses to his complaints
were in any way intended to inhibit his First Amendment activities, or that anyone
conspired to retaliate against him because of those activities. See Rhodes v.
Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); Burns v. County of King, 883
F.2d 819, 821 (9th Cir. 1989) (per curiam). Nor did the district court err by later
granting summary judgment for RJD medical staff members on those claims.
Garcia did not raise genuine issues of material fact regarding his claims that RJD
3 19-56128
medical staff acted with retaliatory motives when they tapered him off pain relief
medication and did not prescribe more. See Rhodes, 408 F.3d at 567; see also
Wood v. Yordy, 753 F.3d 899, 904–05 (9th Cir. 2014). Evidence of the proximity
in time between Garcia’s initiation of a habeas action in state court about his
medical care and RJD medical staffs’ decision to taper him off of pain relief
medication was not by itself sufficient to create a triable issue as to retaliatory
motive. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995); see also Huskey v.
City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).
The district court did not abuse its discretion when it dismissed Garcia’s
claims against M. Martinez for failure to effect timely service when the action had
been pending for over four years. See Fed. R. Civ. P. 4(m); Walker v. Sumner, 14
F.3d 1415, 1422 (9th Cir. 1994), abrogated in part on other grounds by Sandin v.
Conner, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995).
Further, Garcia had not provided the U.S. Marshal with enough information to
serve Martinez, despite several extensions of time to do so. Likewise, it was not an
abuse of discretion to deny Garcia’s request for an extension of time to file a
Second Amended Complaint. See Fed. R. Civ. P. 6(b); Ahanchian v. Xenon
Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010). As the district court
indicated, an extension would unfairly “prejudice the Defendants in this action”
4 19-56128
because after four years of significant motion practice, the pleading phase was
over, discovery was closed, and trial was imminent. See Tindall v. First Solar Inc.,
892 F.3d 1043, 1048 (9th Cir. 2018).
We decline to review Garcia’s state law claim regarding violation of
regulations in Title 15 of the California Code of Regulations because he did not
raise it in the district court. See Baccei v. United States, 632 F.3d 1140, 1149 (9th
Cir. 2011). We also decline to review Garcia’s arguments regarding the magistrate
judge’s denial of his motions to appoint counsel and expert witnesses because he
did not timely raise them before the district judge. See Fed. R. Civ. P. 72(a);
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); see also
Glenbrook Homeowners Ass’n v. Tahoe Reg’l Plan. Agency, 425 F.3d 611, 619
(9th Cir. 2005).
AFFIRMED.
5 19-56128
Ruben Garcia, Jr. v. K. Seeley
Combined Opinion