FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
APPLETON PICKETT, Jr., No. 11-35933
Plaintiff - Appellant, D.C. No. 6:09-cv-00689-TC
v.
MEMORANDUM *
MAX WILLIAMS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Oregon state prisoner Appleton Pickett, Jr., appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging various
constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019
(9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Pickett’s claim
alleging failure to protect him from inmate assault because Pickett failed to raise a
genuine dispute of material fact as to whether defendants knew of and disregarded
an excessive risk to his safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(claim of deliberate indifference requires showing that “the official [knew] of and
disregard[ed] an excessive risk to inmate . . . safety”).
The district court properly granted summary judgment on Pickett’s due
process claims because the hearings officer properly declined to call witnesses
whose testimony was irrelevant to the proceedings, and there is no constitutional
right to request an investigation or receive administrative review of prison
disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 564-70 (1974)
(describing minimum procedural due process protections in prison disciplinary
proceedings).
The district court properly granted summary judgment on Pickett’s
retaliation claims because Pickett failed to raise a genuine dispute of material fact
as to whether the allegedly retaliatory actions were not supported by legitimate
correctional goals. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (a
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prisoner plaintiff “bears the burden of pleading and proving the absence of
legitimate correctional goals for the conduct of which he complains”).
The district court properly granted summary judgment on Pickett’s access-
to-courts claims because Pickett failed to raise a genuine dispute of material fact as
to whether the allegedly inadequate grievance process and law library services
resulted in actual injury to him. See Lewis v. Casey, 518 U.S. 343, 348 (1996) (to
establish denial of access to courts, a prisoner must show “actual prejudice with
respect to contemplated or existing litigation, such as the inability to meet a filing
deadline or to present a claim” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Pickett’s claims
alleging deliberate indifference to medical needs because Pickett failed to raise a
genuine dispute of material fact as to whether defendants failed to address a serious
medical need. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)
(“In order to violate the Eight Amendment proscription against cruel and unusual
punishment, there must be a ‘deliberate indifference to serious medical needs of
prisoners.’” (citation omitted)).
The district court properly granted summary judgment on Pickett’s claim
regarding legal correspondence because Pickett failed to raise a genuine dispute of
material fact as to whether defendants opened mail marked as legal correspondence
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outside his presence. See Wolff, 418 U.S. at 576-77 (prison officials may require
that legal correspondence be marked as originating from an attorney, and may open
such mail in the presence of the prisoner).
The district court properly granted summary judgment on Pickett’s claim
alleging unsafe and inhumane living conditions because Pickett failed to raise a
genuine dispute of material fact as to whether he suffered a deprivation resulting in
“the denial of ‘the minimal civilized measure of life’s necessities.’” Farmer, 511
U.S. at 834 (citation omitted).
The district court properly granted summary judgment on Pickett’s claims
alleging violations of the Americans with Disabilities Act (“ADA”) because
Pickett failed to raise a genuine dispute of material fact as to whether he suffered
disability-based discrimination. See Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1022 (9th Cir. 2010) (“The ADA prohibits discrimination because of
disability, not inadequate treatment for disability.”).
The district court properly concluded that the seventh, twelfth, and thirteenth
claims set forth in the operative complaint are time-barred because the alleged acts
or omissions occurred more than two years before Pickett filed the complaint. See
Or. Rev. Stat. § 12.110(1) (two-year statute of limitations for personal injury
claims); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (“State law
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governs the statute of limitations period for § 1983 suits[.]”). Moreover, to the
extent that any acts or omissions underlying Pickett’s claims alleging retaliation,
denial of access to courts, deliberate indifference to medical needs, and opening
legal correspondence arose before July 17, 2007, the district court properly granted
summary judgment because those claims are time-barred. See Or. Rev. Stat.
§ 12.110(1). Pickett has not alleged a basis for equitably estopping defendants
from asserting a statute of limitations defense. See Philpott v. A.H. Robins Co.,
Inc., 710 F.2d 1422, 1425 (9th Cir. 1983) (for equitable estoppel to apply, there
must be an affirmative inducement by defendant that delayed plaintiff from timely
filing suit).
We do not consider matters raised for the first time on appeal, such as
Pickett’s arguments regarding the Rehabilitation Act and respondeat superior
liability. See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002).
AFFIRMED.
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