Anthony Burriola v. Nevada Department of Correctio

FILED
NOT FOR PUBLICATION JAN 12 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ANTHONY J. BURRIOLA, No. 10-16393

Plaintiff - Appellant, D.C. No. 3:07-cv-00102

v.
MEMORANDUM *
NEVADA DEPARTMENT OF
CORRECTIONS; GLEN WHORTON;
DARREL REXWINKEL; BILL DONAT;
JAMES BACA; ELIZABETH WALSH;
TIMOTHY LIETZ; VINSON SCOTT;
VALAREE CLIFTON; DANIEL
COLLIER; KELLY BELANGER;
ROBERT LEGRAND; GREG COX;
MATT TILLY; JASON WOOD;
HOWARD SKOLNIK,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of Nevada
James C. Mahan, District Judge, Presiding

**
Submitted December 19, 2011

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

Nevada state prisoner Anthony Burriola timely appeals pro se from the

district court’s judgment in his 42 U.S.C. § 1983 action. The district court

dismissed Burriola’s claims in Counts 5–7 for failure to exhaust administrative

remedies, and granted summary judgment to the defendants on Counts 1, 2 & 4.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part,

and remand for further proceedings.

Burriola has not waived his challenges to the magistrate judge’s conclusions

of law which he raised in his opening brief, despite his failure to object to either

the magistrate judge’s report and recommendation regarding the disposition of his

complaint or to the magistrate judge’s screening order dismissing some of his

claims. See Pollard v. The GEO Group, Inc., 629 F.3d 843, 853 (9th Cir. 2010);

Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). However, he has

waived any challenge to the magistrate judge’s factual findings, as well as any

challenge not addressed in his briefing here. Martinez v. Ylst, 951 F.2d 1153,

1156–57 (9th Cir. 1991).

We review de novo the legal conclusions underlying a district court’s

dismissal for failure to exhaust administrative remedies. Griffin v. Arpaio, 557

F.3d 1117, 1119 (9th Cir. 2009). To the extent Burriola’s claims in Counts 5–7

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were premised on conduct occurring after the filing of his original complaint, the

district court should have determined whether those claims were exhausted as of

the filing date of the amended complaint, not as of the filing date of the original

complaint. See Rhodes v. Robinson (“Rhodes II”), 621 F.3d 1002, 1005–06 (9th

Cir. 2010). Because Rhodes II clarified McKinney v. Carey, 311 F.3d 1198 (9th

Cir.2002) (per curiam) after the district court dismissed Burriola’s claims, we

vacate and remand to the district court to apply Rhodes II in the first instance.

We review a summary judgment de novo. Brodheim v. Cry, 584 F.3d 1262,

1267 (9th Cir. 2009). We may affirm on any basis supported by the record.

McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir. 2009).

Count 1 concerns Burriola’s claims for damage to his typewriter and

confiscation of a replacement typewriter. His deprivation of property claims fail

because he has an adequate state law remedy available. See Barnett v. Centoni, 31

F.3d 813, 816–17 (9th Cir. 1994) (per curiam); Nev. Rev. Stat. § 209.243. His

claim for retaliation under the First Amendment also fails with respect to his

damaged typewriter. See U.S. Const. amend I; Rhodes v. Robinson (“Rhodes I”),

408 F.3d 559, 567–68 (9th Cir. 2005). Burriola presented no evidence that the

guard who allegedly damaged his typewriter knew of his protected activity, so the

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district court properly granted summary judgment on this aspect of his claim. See

Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995).

However, the district court erred in granting summary judgment as to

Burriola’s retaliation claims arising from the confiscation of a replacement

typewriter. It considered whether the prison’s categorical ban on typewriters was

reasonably related to a legitimate correctional goal. See Nev. Dep’t of Corr. v.

Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). But the categorical ban is unrelated

to the confiscation of Burriola’s typewriter, which occurred in June 2006, months

before the enactment of the categorical ban. See Nev. Dep’t of Corr. v. Cohen, 581

F. Supp. 2d 1085, 1087 (D. Nev. 2008), aff’d by Greene, 648 F.3d at 1018.

Therefore, we vacate the judgment as to Count 1 regarding Burriola’s replacement-

typewriter retaliation claim.

Burriola’s contentions of error as to Count 2 are without merit, because the

district court properly applied the law to his claims that the confiscation of some of

his religious magazines violated his First Amendment right to free exercise of

religion, his rights under the Religious Land Use and Institutionalized Persons Act

of 2000 (“RLUIPA”),2 and his right to substantive due process. See Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998) (due process); Zinermon v.

2
42 U.S.C. § 2000cc et seq.
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Burch, 494 U.S. 113, 125 (1990) (same); Turner v. Safley, 482 U.S. 78, 89–91

(1987) (free exercise); Shakur v. Schriro, 514 F.3d 878, 884, 888 (9th Cir. 2008)

(free exercise and RLUIPA); Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir.

2005) (RLUIPA). Moreover, his deprivation of property claim fails because the

district court found that the prison regulation limiting magazines was reasonably

related to legitimate penological interests. See Turner, 482 U.S. at 89. Burriola

presented no argument on appeal regarding any procedural due process violation.

See Katie A., ex rel. Ludin v. L.A. Cnty., 481 F.3d 1150, 1161 n.21 (9th Cir. 2007).

We therefore affirm the district court’s summary judgment on Count 2.

Likewise, we affirm the district court’s summary judgment on Count 4

because the parties stipulated to dismissal of Burriola’s claim regarding Nev. Rev.

Stat. § 209.246, and because the district court properly found that Burriola did not

demonstrate an actual injury as required for his claim alleging violation of his right

of access to the courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Vandelft v.

Moses, 31 F.3d 794, 798 (9th Cir. 1994).

We affirm the district court on Counts 2 & 4, and vacate and remand for

further proceedings on Counts 5–7 and on Count 1 regarding the replacement-

typewriter retaliation claim.

The parties shall bear their own costs on appeal.

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AFFIRMED in part, VACATED in part, and REMANDED.

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