FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GABRIEL RUDY CORTEZ, No. 11-17507
Plaintiff - Appellant, D.C. No. 5:09-cv-03021-EJD
v.
MEMORANDUM *
MATTHEW CATE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Gabriel Rudy Cortez, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging due
process, equal protection, and First Amendment claims in connection with his
*
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).
validation as an associate of a prison gang and confinement in the security housing
unit (“SHU”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We may affirm on any ground
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Cortez’s due
process claim relating to his 2008 validation as a prison gang associate because the
record shows that Cortez received notice and an opportunity to present his views
and there was “some evidence,” with sufficient indicia of reliability, in support of
the decision. See Bruce, 351 F.3d at 1287-88.
The district court properly granted summary judgment on Cortez’s equal
protection claim because the procedures called for in the memorandum at issue
were racially neutral and narrowly tailored to address a compelling government
interest in prison security. See Johnson v. California, 543 U.S. 499, 511-13
(2005); Richardson v. Runnels, 594 F.3d 666, 671 (9th Cir. 2010).
Summary judgment was proper on Cortez’s First Amendment claim that he
had a right to “benign association” with people of his own ethnic group without
being subjected to a risk of SHU confinement on the basis of such associations
because “the Constitution [does not] recognize[] a generalized right of ‘social
2 11-17507
association.’” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (activity protected
by First Amendment right of association includes “intimate association” and
“expressive association”); Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S.
119, 131 (1977) (prison officials may curtail prisoner’s associational rights if they
conclude such associations “possess the likelihood of disruption to prison order or
stability, or otherwise interfere with [] legitimate penological objectives”).
The district court did not abuse its discretion by denying Cortez’s request for
appointment of counsel because Cortez failed to demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and listing factors to consider).
The district court did not abuse its discretion by granting summary
judgment without allowing Cortez further discovery because Cortez did not show
how additional discovery would have affected the disposition of his case. See
Fed. R. Civ. P. 56(d); Barona Grp. of the Capitan Grande Band of Mission
Indians v. Am. Mgmt. & Amusement, Inc., 840 F.2d 1394, 1399-1400 (9th Cir.
1987) (denial of a request for additional discovery is proper where the moving
party “failed to explain how additional discovery would have affected the
disposition of the case”).
However, the district court erred in granting summary judgment on Cortez’s
3 11-17507
First Amendment retaliation claim when it improperly concluded that Cortez
could not refute that defendants had legitimate correctional goals for his gang
validation. Cortez provided evidence to create a genuine dispute of material fact
as to improper motive, and “prison officials may not defeat a retaliation claim on
summary judgment simply by articulating a general justification for a neutral
process, when there is a genuine issue of material fact as to whether the action was
taken in retaliation for the exercise of a constitutional right.” Bruce, 351 F.3d at
1289 (“[If . . . the defendants abused the gang validation procedure as a cover or a
ruse to silence and punish [the prisoner] because he filed grievances, they cannot
assert that [his] validation served a valid penological purpose, even though he may
have arguably ended up where he belonged.”). Accordingly, we reverse and
remand for further proceedings on this claim.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
4 11-17507