MCDANIELS v. DOC 10 11 12 13 37 38 40 41 42 SCCC SCCC CI DOC SCCC DOC SCCC SCCC (2020)

MEMORANDUM **

Washington state prisoner Peter J. McDaniels appeals pro se from the district court's summary judgment in his action brought under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Because the facts are known to the parties, we repeat them only as necessary to explain our decision.

I

McDaniels did not raise a genuine dispute of material fact as to whether the non-halal diets were any more or less healthy than the halal diets. Nor did he raise a genuine dispute of material fact as to whether he has a soy allergy. As a result, he failed to show that the defendants’ actions substantially burdened his religious exercise. Accordingly, the district court properly granted summary judgment on his First Amendment and RLUIPA claims. See Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005); Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997), abrogated on other grounds as recognized in Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008).

McDaniels failed to raise a genuine dispute of material fact as to whether the defendants either knew of and disregarded an excessive risk to his health and safety, see Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), or purposefully ignored or failed to respond to a possible medical need, see McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). Accordingly, the district court properly granted summary judgment on his Eighth Amendment claims.

McDaniels failed to raise a genuine dispute of material fact as to whether the defendants intentionally discriminated against him because of his religion. Consequently, the district court properly granted summary judgment on his equal protection claim. See Freeman, 125 F.3d at 737.

McDaniels failed to raise a genuine dispute of material fact as to whether Richard Roberts took any adverse action against him because of protected conduct. Therefore, the district court properly granted summary judgment on his retaliation claim against Roberts. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).

In his second amended complaint, McDaniels failed to provide any details beyond a passing statement that Joe Williamson retaliated against him. Consequently, he failed to raise a genuine dispute of material fact as to whether Williamson took adverse action against him because of his protected conduct. See id. Accordingly, the district court properly granted summary judgment on his retaliation claim against Williamson.

Because McDaniels failed to cite any augmentative legislation that would allow him to bring a private cause of action under the Washington State Constitution, the district court did not err in concluding that he failed to bring a viable claim. See Blinka v. Wash. State Bar Ass'n, 109 Wash.App. 575, 36 P.3d 1094, 1102 (2001).

McDaniels did not raise a genuine dispute of material fact as to whether the defendants negligently served him rotten meat or failed to care for his purported medical condition. Nor did he raise a genuine dispute of material fact as to whether the defendants intentionally inflicted harmful bodily contact upon him. Finally, McDaniels waived his claim of intentional infliction of emotional distress because he failed to raise it in his second amended complaint. See Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“Issues not presented to a district court generally cannot be heard on appeal.”). Accordingly, the district court properly granted summary judgment on McDaniels's state tort claims.

McDaniels abandoned his due process claims because he failed to support them with any argument. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

II

The district court did not abuse its discretion by denying McDaniels's request for appointment of counsel because McDaniels was able to articulate his claims without such assistance and he was unlikely to succeed on the merits of his case. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

The district court did not abuse its discretion by denying McDaniels's request for appointment of an expert witness to explain his purported medical condition. See Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Because there was no evidence of a medical condition, there was nothing for an expert witness to explain.

The district court did not abuse its discretion by denying McDaniels's request for an extension of discovery. Nor did it abuse its discretion by limiting McDaniels's response to the defendants’ motion for summary judgment to fifty pages instead of ninety-eight. See Atchison, Topeka and Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998) (“[D]istrict courts have inherent power to control their dockets ․”).

III

Because we normally “will not supplement the record on appeal with material not considered by the trial court,” Daly-Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1987), McDaniels's Motion to Add Newly Discovered Evidence, filed with this court on September 23, 2019 (Docket Entry No. 12), is DENIED.

AFFIRMED.