discussing factors for determining whether regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests
How later courts described this case
- discussing factors for determining whether regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests
- “Not every push or shove ... violates the Fourth Amendment.” (citation omitted)
- holding that “proper exhaustion” is man- . datory and requires adherence to administrative procedural rules
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION NOV 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEITH A. BROWN, No. 11-35859
Plaintiff - Appellant, D.C. No. 2:07-cv-00302-BLW
v.
MEMORANDUM *
JEFF JAYNE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Idaho state prisoner Keith A. Brown appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging civil rights violations.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
*
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).
court’s dismissal for failure to exhaust administrative remedies, Wyatt v. Terhune,
315 F.3d 1108, 1117 (9th Cir. 2003), and summary judgment, Toguchi v. Chung,
391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on Brown’s excessive
force claim because Brown failed to establish a genuine dispute of material fact as
to whether Officer Jayne’s use of force was minimal and objectively reasonable
under the circumstances. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not
every push or shove . . . violates the Fourth Amendment.” (citation omitted)).
The district court properly granted summary judgment on Brown’s First
Amendment retaliation claim because Brown failed to establish a genuine dispute
of material fact as to retaliatory motive. See Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005).
The district court properly granted summary judgment on Brown’s First
Amendment interference-with-mail claim because Brown failed to raise a genuine
dispute of material fact as to whether the prison’s mail handling policies restricting
inmate-to-inmate correspondence were reasonably related to legitimate penological
interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987) (discussing factors for
determining whether regulation that impinges on First Amendment rights is
reasonably related to legitimate penological interests).
2 11-35859
The district court property dismissed Brown’s due process claim regarding
the revocation of his correspondence privileges because Brown failed to exhaust
administrative remedies with respect to this claim. See Woodford v. Ngo, 548 U.S.
81, 85, 93-95 (2006) (holding that “proper exhaustion” is mandatory and requires
adherence to administrative procedural rules).
The district court properly dismissed Brown’s claim against defendant
Valdez under 28 U.S.C. § 1915A for failure to state a claim. See Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000) (setting forth standard of review).
Brown’s contentions concerning discovery and severance are unpersuasive.
We do not consider arguments and evidence raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
3 11-35859