NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOUIS A. RANDOLPH, AKA Clyde Lewis, No. 22-15385
Plaintiff-Appellant, D.C. No.
3:17-cv-00085-MMD-CLB
v.
BRIAN WILLIAMS, Sr.; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted January 13, 2023**
San Francisco, California
Before: WALLACE, SILVERMAN, and OWENS, Circuit Judges.
Louis Randolph appeals pro se from the district court’s order adopting the
magistrate judge’s findings and recommendation to grant Defendants’ motion for
summary judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s summary judgment. Toguchi v. Chung, 391 F.3d 1051,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1056 (9th Cir. 2004). We affirm.
Randolph alleges that while he was an inmate at the Southern Desert
Correctional Center: Defendant Reyes withheld food and served spoiled food in
retaliation (Count I); Defendants Harris, Ledingham, Dreesen, and Williams denied
Randolph’s right to freely exercise his religion by not allowing him to attend the Eid
Feast as is tradition in his Muslim faith (Count II); and Defendants violated
Randolph’s rights under the Religious Land Use and Institutionalized Persons Act
(RLUIPA) and the First Amendment to freely exercise his religion, and
discriminated against him based on religion and race in violation of the Equal
Protection clause of the Fourteenth Amendment by not affording him the same
religious dietary accommodations that inmates of other faiths receive (Count III).
Magistrate Judge Carla L. Baldwin issued a report pursuant to 28 U.S.C. § 636(b)
and Nevada district court Local Rule IB 1-4 recommending summary judgment in
favor of Defendants on all counts. After considering Randolph’s timely filed
objection, the district court accepted the report in part, granting summary judgment
to Defendants on Counts II and III, but allowing Count I to go to a jury trial, which
returned a verdict in favor of Defendants. Randolph timely appealed, alleging that
the decisions should be vacated because the law clerk did not notify Randolph that
he could consent to a magistrate judge administering his case, and that he was not
served notice of consent as per Local Rule 26. He also alleges that he was prejudiced
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and denied due process by having a magistrate judge make a recommendation on
Counts II and III rather than a jury.
While we construe a pro se litigant’s filings liberally, a brief must contain
specific and distinct allegations as to how defendants violated the law. Fed. R. App.
P. 28; Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). Although Randolph’s
allegations, if true, are concerning, he fails to provide specific, distinct support for
his contentions that he never received notice, that did he did not consent to the
magistrate judge, that the magistrate judge was biased in favor of Defendants, and
that he was denied due process. In addition, Randolph raised these issues for the
first time on this appeal, which generally bars them from our consideration, and no
exception applies here—nor does Randolph argue that one should. United States v.
Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).
Even if we could consider his arguments, Randolph has not demonstrated that
he was prejudiced and that therefore the district court’s decision should be reversed.
Under 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2(b), a magistrate judge has
the authority to oversee proceedings and submit to a district court judge proposed
findings of fact and recommendations for the disposition of a motion for summary
judgment. Just that occurred here: the district court adopted the submitted report in
part. Though Randolph argues that he did not consent to the magistrate’s ability to
oversee the proceedings, and though Federal Rule of Civil Procedure 73(b)(2) allows
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any party to withhold consent to proceed before a magistrate judge, Randolph at no
point in the proceedings—including in his objection to the report—up until this
appeal argue that he did not consent to the magistrate judge. Nor does Randolph
offer a reason for any of these objections aside from the bald contention that the
magistrate judge was biased.
Similarly, Randolph’s claim that he was prejudiced because a judge, rather
than a jury, heard Counts II and III fails because Randolph did not prove that the
district court erred in accepting the magistrate’s findings to grant summary
judgment. A summary judgment proceeding does not deprive a losing party of the
right to a jury trial. In re Slatkin, 525 F.3d 805, 811 (9th Cir. 2008); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (there is no right to a jury trial where
the evidence is “so one sided that one party must prevail as a matter of law.”).
This appeal also appears to be the first time that Randolph argues that he was
not notified or served notice that he could consent to a magistrate judge. Though we
must consider as evidence a pro se plaintiff’s contentions offered in their pleadings
where such contentions are based on personal knowledge, Randolph offers no
support for these contentions. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
Meanwhile, we can infer from the trial court docket that Randolph was indeed
provided with the magistrate judge consent form as per local rules—and, in any case,
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Randolph did not appear to contest the magistrate judge’s jurisdiction any time in
the proceedings thereafter until this appeal.
Lastly, Randolph also offers no evidence or explanation to support his
conclusory contention that Judge Baldwin was biased. “A showing of judicial bias
requires facts sufficient to create actual impropriety or an appearance of
impropriety,” none of which Randolph demonstrated. Greenway v. Schriro, 653
F.3d 790, 806 (9th Cir. 2011).
AFFIRMED.
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