# Keith Brown v. Jeff Jayne

> Court of Appeals for the Ninth Circuit · November 27, 2012 · 499 F. App'x 688

URL: https://www.frixlaw.com/law-library/cases/812668

## Case

- **Full name:** Keith A. BROWN, Plaintiff-Appellant, v. Jeff JAYNE; Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 27, 2012
- **Citations:** 499 F. App'x 688
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Canby, Trott, Fletcher
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/812668

## How later opinions describe it (automated extraction)

- discussing factors for determining whether regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests
- holding that “proper exhaustion” is man- . datory and requires adherence to administrative procedural rules

## Opinion text

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NOT FOR PUBLICATION NOV 27 2012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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/812668. Public record. Not legal advice.