Cecil L. Morton v. Vanesa Johanson;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CECIL L. MORTON,
Petitioner-Appellant,
v.
VANESA JOHANSON; et al.,
Defendants-Appellees.
No. 18-35521
D.C. No. 3:16-cv-05728-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
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
* 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).
FILED
APR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 (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 (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

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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.

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