FILED
NOT FOR PUBLICATION
AUG 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL SHOTWELL, No. 20-15018
Plaintiff-Appellant, D.C. No. 3:15-cv-02894-WHA
v.
MEMORANDUM*
CHAVEZ-EPPERSON; E MEDINA; S.
BEYER; SMITH; BOLES; FLOREZ;
GARCIA; VARGAS; PETERSON,
Sergeant; RAMIREZ; AVILA,
Defendants-Appellees,
and
DELANEY; G. FLETEZ; J. CERMENO;
HEADSPETH; A. SOLIS; R. MOJICA,
Defendants.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted August 12, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
California prisoner Manuel Eugene Shotwell appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action against Salinas Valley State Prison
personnel. The district court dismissed some claims and granted summary
judgment on the remainder. We affirm in part and reverse in part.
The district judge had jurisdiction because some parties did not consent to
magistrate judge jurisdiction. See 28 U.S.C. § 636(c)(1); Allen v. Meyer, 755 F.3d
866, 868 (9th Cir. 2014). We perceive no abuse of discretion1 in the district court’s
disposition of the various motions and requests about which Shotwell complains.
The district court’s determination that no exceptional circumstances existed
warranting appointment of counsel is well-supported by the record. See Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other
grounds by Rand v. Rowland, 154 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The
district court properly denied Shotwell’s motion for default as to six unserved
defendants. See Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc.,
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1
See United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en
banc).
2
840 F.2d 685, 687–88 (9th Cir. 1988); see also Fed. R. Civ. P. 55(a). The district
court did not abuse its discretion in denying Shotwell’s motions to compel
discovery, nor did Shotwell demonstrate any prejudice therefrom. See Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Likewise, because Shotwell was not
wrongly denied discovery, his challenges to orders regarding summary judgment
deadlines, purported discovery abuses, and sanctions also fail.
Shotwell challenges the dismissal of three of his claims at screening; the
district court did not err. See Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir.
2015); see also Thompson v. Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008). More
specifically: Shotwell failed to state a First Amendment mail interference claim
against defendant J. Cermeno because Shotwell did not plausibly allege that he
suffered any actual injury as a result of that isolated incident. See Lewis v. Casey,
518 U.S. 343, 348–49, 116 S. Ct. 2174, 2178–79, 135 L. Ed. 2d 606 (1996);
Keenan v. Hall, 83 F.3d 1083, 1093–94 (9th Cir. 1996), amended, 135 F.3d 1318
(9th Cir. 1998). Shotwell’s First Amendment retaliation claim against defendants
Smith, Boles, and Florez was properly dismissed because he failed to allege that
those defendants were motivated by his protected conduct. See Rhodes v.
Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Shotwell failed to state an Eighth
Amendment claim against defendants S. Beyer, Ramirez, and Avila based on an
3
opposite-gender search. See Somers v. Thurman, 109 F.3d 614, 623 (9th Cir.
1997).
Although we agree with the district court’s summary judgment order in
many respects, we reverse in part as to three specific issues. We reject Shotwell’s
argument that the defendants waived their statute of limitations defenses, which
were pled in their answers. See Magana v. Northern Mariana Islands, 107 F.3d
1436, 1446 (9th Cir. 1997). The district court properly determined that Shotwell’s
claims were subject to a two-year statute of limitations2 and that Shotwell was
entitled to two years of tolling by virtue of his incarceration.3 We also agree with
the district court that the additional tolling Shotwell sought was not warranted. Cf.
Fed. R. Civ. P. 4(m); Stoll v. Runyon, 165 F.3d 1238, 1242–43 (9th Cir. 1999).
However, the district court erred in determining that Shotwell’s First
Amendment retaliation claim against defendant E. Medina (alleging improper
processing of Shotwell’s grievances about mail interference) was untimely.
Medina processed some grievances after June 16, 2011, less than four years prior
2
Cal. Civ. Proc. Code § 335.1; Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.
1999).
3
Cal. Civ. Proc. Code § 352.1(a); Fink, 192 F.3d at 914. We reject
Shotwell’s argument that he is entitled to indefinite tolling because he has not
argued or shown that he has no possibility of parole. See Brooks v. Mercy Hosp.,
204 Cal. Rptr. 3d 289, 290 (Ct. App. 2016).
4
to Shotwell’s filing of his original complaint, and the original complaint referred to
those incidents. His claim arising from those later incidents was timely. On
remand, the district court should consider whether any earlier alleged instances of
grievance-processing amounted to part of a continuing violation or were discrete
acts. See Pouncil v. Tilton, 704 F.3d 568, 574, 580 (9th Cir. 2012); see also Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 S. Ct. 2061, 2075, 153 L.
Ed. 2d 106 (2002).
Second, the district court erred in determining that Shotwell’s First
Amendment claims against defendant Chavez-Epperson for mail interference and
retaliation were untimely.4 Some of the incidents on which those claims were
premised occurred after April 11, 2012, less than four years before the filing of the
first amended complaint; they were therefore timely. Moreover, many instances of
mail interference were alleged in the original complaint, and those that accrued
after June 16, 2011, were also timely. On remand, the district court should
determine whether any earlier incidents of mail interference were part of a
continuing violation or were discrete acts.
4
We decline to consider in the first instance the defendants’ alternative
grounds for affirming judgment on these claims.
5
Third, the district court erred in entering summary judgment for unserved
defendants Florez, Garcia, and Smith. See Crowley v. Bannister, 734 F.3d 967,
974–75 (9th Cir. 2013). We reverse the judgment in their favor and remand for
further proceedings. See id. at 976; Fed. R. Civ. P. 4(m).
We affirm the district court’s summary judgment as to Shotwell’s other
claims, which arise from allegedly abusive jail cell searches, failures to call him for
yard access and work time, and his grievances about those incidents. All were
untimely because they accrued more than four years prior to the filing of the first
amended complaint, were not alleged in the original complaint, and did not
otherwise relate back to that complaint.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings only as to the three specific issues designated above. The parties
shall bear their own costs on appeal.
6