Opinion
21-15778
09-14-2022
KELVIN EUGENE SIMS, Plaintiff-Appellant, v. F. DE LA TORRE, Correctional Sergeant, CTF-C; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Submitted September 12, 2022 [**]
Appeal from the United States District Court No. 3:18-cv-03620-CRB for the Northern District of California Charles R. Breyer, District Judge, Presiding
Before: WALLACE, SILVERMAN, and N.R. SMITH, Circuit Judges
MEMORANDUM [*]
Kelvin Sims, a California state inmate, appeals from the entry of judgment in favor of the defendants in his 42 U.S.C. § 1983 civil rights action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the dismissal and summary 1 judgment de novo. Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). We affirm.
The district court properly dismissed the Title II Americans with Disabilities Act (ADA) claims alleged against the defendants in their individual capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (holding that state officials cannot be sued in their individual capacities in a § 1983 civil rights action to vindicate rights under Title II of the ADA).
Sims has waived the district court's separate holding that he failed to state an ADA claim against the prison or defendants in their official capacities. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief.").
Sims failed to exhaust his remedies for his Eighth Amendment claim. The grievances did not put the prison on notice that he was claiming that prison officials had failed to protect him from his cell mate. See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (holding that a grievance must be specific enough to "put prison officials on notice of the nature of the wrong alleged" in the prisoner's action); Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (holding that a grievance requesting a ladder to access the top bunk did not exhaust a claim that prison staff disregarded an order assigning the prisoner to a lower bunk). 2
The district court acted within its discretion by denying the request for additional discovery. Sims has not identified what discovery he sought or established that he suffered actual and substantial prejudice from the denial. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth the standard of review).
Summary judgment was proper on the First Amendment retaliation claims. Sims failed to offer sufficient evidence to establish that Weber acted because Sims had engaged in protected activity. Nor did Sims establish that his move to a different cell did not advance a legitimate correctional goal or that the officers acted with a retaliatory motive. Because medical staff, not the officer defendants, had authority to provide egg-crate mattresses and pillows, Sims has not established any of the elements of a retaliation claim against the officers for their refusal to provide the items. Finally, Sims failed to prove that defendant Gonzalez interfered with his mail or grievance. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth the elements of a First Amendment retaliation claim).
Because we affirm the district court's decision with regard to Sims's claims for retaliation and interference with the mail, we need not address Sims's qualified immunity arguments.
AFFIRMED. 3
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).