Opinion
21-16536
10-18-2022
STEVEN L. SCOTT, Plaintiff-Appellant, v. GABRIELA GARCIA, caseworker; GILLIAN LAMBY, caseworker; BRIAN WILLIAMS, Warden, warden; BEN GUTIEREZ, Medical Supervisor; SONJA CLARK-CARILLO, Defendants-Appellees, and JAMES COX; ROMEO ARANAS; GEORGE LEAKS, Doctor; YOUNGBLOOD, Chaplain; JERRY HOWELL, Warden; MICHAEL MINEV; FRANK DREESEN; KIM THOMAS, Defendants.
NOT FOR PUBLICATION
Submitted October 14, 2022 [**] San Francisco, California
Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding No. 2:17-cv-00702-JAD-BNW
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
MEMORANDUM [*]
Steven Scott appeals pro se from the district court's partial judgment in favor of Defendants Gabriela Garcia, Benjamin Gutierrez, Gillian Lambey, Sonya Clark-Carrillo, and Brian Williams (the Defendants) in Scott's 42 U.S.C. § 1983 action. We affirm in part, vacate in part, and remand.
We reject the Defendants' various challenges to our jurisdiction. See United States v. Gila Valley Irrigation Dist., 859 F.3d 789, 796-97 (9th Cir. 2017). The district court's order granting the Defendants' motion for summary judgment was rendered final by operation of Federal Rule of Civil Procedure 54(b). See id. at 797; AFGE Local 1533 v. Cheney, 944 F.2d 503, 505 n.3 (9th Cir. 1991); see also Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437-38, 76 S.Ct. 895, 900-01, 100 L.Ed. 1297 (1956). Scott's notice of appeal was therefore timely. See Williams v. Boeing Co., 681 F.2d 615, 616 (9th Cir. 1982) (per curiam); Fed. R. App. P. 4(a)(1)(A). Scott's claims for monetary damages have not been mooted by his release from prison. See Rhodes v. Robinson, 408 F.3d 559, 565-66, 566 n.8 (9th Cir. 2005); Oliver v. Keller, 289 F.3d 623, 627 n.5, 630 (9th Cir. 2002). The Defendants' motion to dismiss this appeal (Dkt. 28) is DENIED.
Reviewing de novo, we conclude that the district court did not err in dismissing Scott's First Amendment claims against Garcia and Lambey on the ground that they were barred by res judicata arising from an earlier judgment of the Clark County, Nevada district court. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). The Nevada judgment was rendered on the merits as to those defendants because they conceded in that case that they had been properly served. See Leon v. IDX Sys. Corp., 464 F.3d 951, 962 (9th Cir. 2006); Nev. R. Civ. P. 41(b); Five Star Cap. Corp. v. Ruby, 194 P.3d 709, 715 (Nev. 2008).
Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).
We also affirm the judgment in favor of Garcia and Lambey on the Fourteenth Amendment claim because Scott conceded in the district court that they were not involved in the conduct underlying that claim.
However, upon our de novo review, we agree with Scott that the district court erred in granting summary judgment to Defendant Williams on Scott's First and Fourteenth Amendment claims without addressing the merits of his motion to compel discovery responses. See Stevens v. Corelogic, Inc., 899 F.3d 666, 677 (9th Cir. 2018). Scott explained in his motion to compel and in his opposition to the Defendants' motion for summary judgment that he needed documents responsive to his Request No. 8 to prove his First and Fourteenth Amendment claims, and the district court ultimately granted summary judgment on the ground that Scott had failed to adduce evidence showing Williams' personal involvement in the conduct underlying those claims. That underscores the relevance and potential importance of those documents. See Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1178-79 (9th Cir. 2006). The Defendants have not argued otherwise. We therefore vacate the judgment in Williams' favor on the First and Fourteenth Amendment claims.
Scott's assertion that the district court also failed to decide his motion regarding the independent optometrist prior to granting summary judgment is belied by the record.
We also agree with Scott that the district court erred in granting summary judgment to Defendant Gutierrez on his First Amendment retaliation claim on the ground that Scott had failed to come forward with evidence that the alleged conversation with Gutierrez occurred. Scott's verified complaint supplied that evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & n.10 (9th Cir. 1995); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Viewing the record in the light most favorable to Scott, there is a genuine issue of material fact as to whether the conversation took place. Therefore, we vacate the summary judgment in favor of Gutierrez on the retaliation claim.
See Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009).
We do not consider arguments raised for the first time on appeal or matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985, 985 n.2 (9th Cir. 2009); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
For that reason, we affirm the judgment in favor of Gutierrez and Clark-Carrillo on the conspiracy claim.
AFFIRMED in part, VACATED in part, and REMANDED.
The parties shall bear their own costs on appeal.
[*] 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).