Timothy Olmos v. Charles Ryan

FILED

NOT FOR PUBLICATION DEC 02 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY PAUL OLMOS, No. 14-15406

Plaintiff - Appellant, D.C. No. 2:10-cv-02564-GMS

v.

MEMORANDUM*

CHARLES L. RYAN; ALLEN ORTEGA,

Co II/SSU Officer #2083,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Submitted November 18, 2015**

Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

Timothy Paul Olmos appeals pro se from the district court’s judgment in his

42 U.S.C. § 1983 action alleging constitutional violations in connection with his

conditions of confinement. 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 summary judgment and dismissal under Fed. R. Civ. P. 12(b)(6).

Doe v. Abbott Labs, 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

The district court properly concluded that Olmos failed to exhaust his claims

regarding charges for certain services and items, interest payments for his prisoner

bank account, and prison mail policies, and failed to establish that administrative

remedies were effectively unavailable to him. See Sapp v. Kimbrell, 623 F.3d 813,

821-24 (9th Cir. 2010) (discussing proper exhaustion and describing limited

circumstances where improper screening renders administrative remedies

unavailable).

The district court properly granted summary judgment on Olmos’ claims

regarding overcrowding, insufficient food, charges for certain services and items,

and compensation as an educational aide on the basis of qualified immunity

because it would not have been clear to every reasonable prison official that

defendant’s actions were unlawful. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080,

2083 (2011) (explaining two-part test for qualified immunity).

The district court properly dismissed Olmos’ takings claim regarding the

return of inmate-purchased clothing as unripe because it is not yet fit for judicial

review and the hardship to Olmos has not yet occurred. See Alaska Right to Life

Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (elements of

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prudential ripeness).

The district court properly granted summary judgment on Olmos’ retaliation

claim because Olmos failed to raise a genuine dispute of material fact as to whether

the adverse action did not reasonably advance a legitimate correctional goal. See

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

of inmate retaliation claim).

The district court properly granted summary judgment on Olmos’ claim

regarding compensation as a kitchen worker because Olmos failed to raise a

genuine dispute of material fact as to whether the position was classified to be paid

at a higher wage. See Ariz. Rev. Stat. § 31-254(A) (granting the director discretion

to determine prison worker’s compensation).

The district court did not abuse its discretion in denying Olmos’ motion to

amend his complaint because Olmos had not yet served defendants and he was

given subsequent opportunities to amend his complaint. See Hinton v. Pac.

Enters., 5 F.3d 391, 395 (9th Cir. 1993) (setting forth standard of review and

requirements for leave to amend).

The district court did not abuse its discretion in denying Olmos’ motions for

discovery because Olmos failed to show what material facts would have been

discovered that would have precluded summary judgment. See Klingele v.

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Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (“The burden is on the nonmoving

party . . . to show what material facts would be discovered that would preclude

summary judgment.”).

The district court did not abuse its discretion in denying Olmos’ motion to

appoint counsel because Olmos did not demonstrate exceptional circumstances.

See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting forth standard

of review and requirements for appointment of counsel).

We do not consider issues or arguments not specifically and distinctly raised

and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th

Cir. 2009) (per curiam).

Appellees’ motion to strike Olmos’ appendix, filed on June 20, 2014, is

denied as moot.

AFFIRMED.

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