Kenneth Packnett v. Wingo

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

KENNETH JEROME PACKNETT, on No. 15-15910
behalf of himself and all others similarly
situated, D.C. No. 4:09-cv-00327-YGR

Plaintiff-Appellant,
MEMORANDUM*
v.

R. WINGO, individually and in her official
capacity as Mailroom Sergeant; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted April 11, 2017**

Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Kenneth Jerome Packnett, a California state prisoner, appeals pro se from

the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging First

Amendment claims related to his incoming legal mail. We have jurisdiction under

*
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).
28 U.S.C. § 1291. We review de novo. Williams v. Paramo, 775 F.3d 1182, 1191

(9th Cir. 2015) (exhaustion); Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.

2004) (summary judgment). We affirm.

The district court properly granted summary judgment on Packnett’s claims

regarding the handling of legal mail because Packnett failed to raise a genuine

dispute of material fact as to whether defendants opened properly designated legal

mail outside his presence, or otherwise violated the First Amendment by

mishandling confidential correspondence. See Wolff v. McDonnell, 418 U.S. 539,

576-77 (1974) (prison officials may require that legal correspondence be marked as

originating from an attorney); Cal. Code Regs. tit. 15 §§ 3141, 3143 (2007)

(requiring incoming letters to bear the “name or title” of an attorney in order to be

processed as confidential); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

2011) (setting forth requirements for establishing supervisory liability under

§ 1983); Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (temporary delay in

mail delivery did not violate First Amendment where reasonably related to the

prison’s interest in inspecting mail).

The district court properly granted summary judgment on Packnett’s

retaliation claims relating to legal mail because Packnett failed to raise a genuine

dispute of material fact as to whether defendants acted with a retaliatory motive.

See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth

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elements of a retaliation claim in the prison context); see also Brodheim v. Cry,

584 F.3d 1262, 1271 (9th Cir. 2009) (“To prevail on a retaliation claim, a plaintiff

must show that his protected conduct was the ‘substantial’ or ‘motivating’ factor

behind the defendant’s conduct.” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Packnett’s

retaliatory cell-search claim because Packnett did not file a grievance that

sufficiently alerted prison officials to his claim. See Woodford v. Ngo, 548 U.S.

81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means using all

steps that the agency holds out, and doing so properly (so that the agency addresses

the issues on the merits).” (emphasis, citation, and internal quotation marks

omitted)); Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (“[A] grievance

suffices if it alerts the prison to the nature of the wrong for which redress is

sought.” (citation and internal quotation marks omitted)).

The district court properly granted summary judgment on Packnett’s claims

relating to the grievance process because Packnett has no constitutional entitlement

to a specific grievance procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th

Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison

grievance procedure.”).

The district court did not abuse its discretion in denying Packnett’s motion

to compel discovery because Packnett failed to meet and confer with defendants.

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See Fed. R. Civ. P. 37(a)(1) (motion to compel discovery must include certification

that movant has in good faith conferred or attempted to confer with opposing

party); N.D. Cal. Civ. L.R. 37-1 (requirement to confer in good faith); Hallett v.

Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review).

The district court did not abuse its discretion in denying Packnett’s motion

for sanctions because Packnett failed to establish any misconduct. See Winterrowd

v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 819 (9th Cir. 2009) (standard of

review).

AFFIRMED.

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