Opinion
21-17012
10-18-2022
CHARLES E. KEMP, Plaintiff-Appellant, v. B. EGERTON; et al., Defendants-Appellees, and ROMEO ARANAS; et al., Defendants.
NOT FOR PUBLICATION
Submitted October 12, 2022 [**]
Appeal from the United States District Court for the District of Nevada D.C. No. 3:19-cv-00582-MMD-WGC Miranda M. Du, District Judge, Presiding
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM [*]
Charles E. Kemp, a Nevada state inmate, appeals pro se from the district court's summary judgment and dismissal order in his 42 U.S.C. § 1983 action alleging various claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009) (summary judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly granted summary judgment on Kemp's deliberate indifference claims against defendant Poag because these claims are barred by the statute of limitations. See Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (statute of limitations for § 1983 claims in Nevada is two years).
The district court properly granted summary judgment on Kemp's deliberate indifference claims against defendants Egerton and Donnelly because Kemp failed to raise a genuine dispute of material fact as to whether Egerton and Donnelly were deliberately indifferent in responding to Kemp's grievances. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk of harm to an inmate's health).
The district court properly dismissed Kemp's First and Fourteenth Amendment claims against Egerton and Donnelly because Kemp failed to allege facts sufficient to show that the removal of attachments from a grievance caused him an actual injury or denied him due process. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must allege facts sufficient to state a claim); see also Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (elements of an access-to-courts claim and actual injury requirement); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) ("[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure[.]").
We do not consider arguments raised for the first time in the reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.").
Kemp's motion for judicial notice and action (Docket Entry No. 6) is denied.
AFFIRMED.
[*] 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).