MORTON v. JOHANSON (2019)

MEMORANDUM **

Cecil L. Morton, a Washington state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations arising from a disciplinary hearing. We have jurisdiction under 28 U.S.C. § 1291. We review de novo cross-motions for summary judgment. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

The district court properly granted summary judgment for defendants Johanson, Jackson, and Glebe on Morton’s due process claim because Morton failed to raise a genuine dispute of material fact as to whether he was denied due process where he was given a rehearing and the infraction was dismissed. See Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (“The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.”).

The district court properly granted summary judgment on Morton’s due process claim against defendant Rucker because Morton failed to raise a genuine dispute of material fact as to whether Rucker’s behavior infringed on a protected liberty interest. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (an inmate’s liberty interests protected by due process are “generally limited to freedom from restraint which ․ imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”).

The district court properly granted summary judgment for Rucker on Morton’s retaliation claim because Morton failed to raise a genuine dispute of material fact as to whether Rucker acted with retaliatory motive or lacked a legitimate penological purpose for his actions. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth requirements for a retaliation claim in the prison context).

The district court did not abuse its discretion by denying Morton’s motion for a temporary restraining order because Morton failed to establish that he was likely to succeed on the merits. See Earth Island Institute v. U.S. Forest Serv., 351 F.3d 1291, 1297-98 (9th Cir. 2003) (setting forth standard of review and requirements for injunctive relief).

We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Morton’s motion to hear the appeal on the original record, set forth in the opening brief, is denied as unnecessary.

AFFIRMED.