MACK A. WEST, Jr. v. F. ULLOA, Correctional Officer, individual and official capacity;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACK A. WEST, Jr.,
Plaintiff-Appellant,
v.
F. ULLOA, Correctional Officer, individual
and official capacity; et al.,
Defendants-Appellees.
No. 20-56167
D.C. No.
2:17-cv-04892-VBF-KES
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted December 5, 2022**
San Francisco, California
Before: BADE, LEE, and KOH, Circuit Judges.
Mack A. West, Jr., a California state prisoner proceeding pro se, appeals the
district court’s judgment dismissing his 42 U.S.C. § 1983 action against twenty-
eight defendants alleging violations of his rights under the First and Eighth
* 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
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Amendments. We have jurisdiction under 28 U.S.C. § 1291. We review the
district court’s dismissal for failure to state a claim de novo and its denial of leave
to amend for abuse of discretion. Chappel v. Lab’y Corp. of Am., 232 F.3d 719,
723, 725–26 (9th Cir. 2000). We affirm.
The district court properly dismissed West’s First Amendment retaliation
claims against Correctional Officers Ulloa and Torres because he failed to
plausibly allege that they took adverse actions or retaliated against him, or that
their actions chilled the exercise of his First Amendment rights. See Rhodes v.
Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (setting forth the elements of a
First Amendment retaliation claim in “the prison context”); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (a plaintiff must allege facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged”).
The district court properly dismissed West’s First Amendment retaliation
claims against Warden Asuncion and Grievance Appeals Coordinators Barnes,
Curiel, and Estrada, premised on their responses to his grievances, because West
made only speculative allegations that they retaliated against him. See Wood v.
Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“We have repeatedly held that mere
speculation that defendants acted out of retaliation is insufficient.”).
The district court properly dismissed West’s First Amendment retaliation

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claims alleging that Chief Deputy Warden Cano, Correctional Counselor Rhodes,
and Captain Freeman created a document that included false information about
West and interfered with West’s grievance responses because West failed to
plausibly allege that they took adverse actions or retaliated against him, or that
their actions chilled the exercise of his First Amendment rights. See Rhodes, 408
F.3d at 567–68.
The district court properly dismissed West’s First Amendment retaliation
claims against Lieutenant Reaume, which alleged that Reaume placed West in
administrative segregation as retaliation and obstructed an inquiry into one of
West’s grievances. However, West conceded that he was transferred to
administrative segregation because a weapon was found in his cell. Moreover,
West did not plausibly allege an adverse action, that Reaume retaliated against
him, or that Reaume’s actions lacked a legitimate correctional goal. See id.;
Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995) (“Legitimate goals of a
correctional institution include the preservation of internal order and discipline and
the maintenance of institutional security.”).
Because West failed to plausibly allege that Correctional Officers Gray and
Hogan took adverse actions or retaliated against him, the district court properly
dismissed West’s claims alleging that Gray and Hogan fabricated inmate
communications as excuses for retaliatory cell searches. See Rhodes, 408 F.3d at

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567–68.
The district court properly dismissed West’s Eighth Amendment claim
alleging that other defendants failed to protect him from Ulloa and Torres because
West failed to plausibly allege that any defendant knew that Ulloa and Torres
posed a substantial risk of serious harm to him. See Farmer v. Brennan, 511 U.S.
825, 837 (1994) (setting forth the elements of an Eighth Amendment claim of
deliberate indifference).
The district court properly dismissed West’s Eighth Amendment claim
alleging that Ulloa, Torres, Cano, and Rhodes failed to protect him from other
inmates by creating a document that included false information about West
because West did not plausibly allege that they knew of any substantial risk of
serious harm. See id.
The district court properly dismissed West’s Eighth Amendment claim
alleging that Ulloa and Torres failed to protect him from himself when they
allegedly planted weapons in his cell, slid him a small piece of metal, and taunted
him because he did not allege facts showing that they had any reason to know that
he was at serious risk of suicide. See id.; Conn v. City of Reno, 591 F.3d 1081,
1102 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), opinion reinstated in relevant
part, 658 F.3d 897 (9th Cir. 2011) (discussing deliberate indifference in the context
of a risk of suicide). Moreover, a verbal taunt, without more, would not rise to the

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level of an Eighth Amendment violation. See Gaut v. Sunn, 810 F.2d 923, 925 (9th
Cir. 1987) (per curiam).
The district court properly dismissed West’s Eighth Amendment claims for
deliberate indifference to his mental health needs because he failed to allege that
medical providers Leduc, Garret, Paz, and Ghassemi provided care that was
medically unacceptable under the circumstances or chosen in conscious disregard
of an excessive risk to his health. See Toguchi v. Chung, 391 F.3d 1051, 1058–60
(9th Cir. 2004) (explaining that a prisoner’s difference of opinion concerning the
appropriate course of treatment does not state a claim for medical deliberate
indifference unless the prisoner can show “that the chosen course of treatment ‘was
medically unacceptable under the circumstances,’ and was chosen ‘in conscious
disregard of an excessive risk to the prisoner’s health’” (citation omitted)).
The district court did not abuse its discretion in dismissing without leave to
amend because amendment would be futile. See Chappel, 232 F.3d at 725–26
(explaining that a district court properly denies leave to amend when it would be
futile); Fid. Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432,
1438 (9th Cir. 1986) (“The district court’s discretion to deny leave to amend is
particularly broad where the court has already given the plaintiff an opportunity to
amend his complaint.”).
The district court did not abuse its discretion in referencing documents

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outside the record. See Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir.
2001) (explaining that on a Rule 12(b) motion to dismiss, a court may “take
judicial notice of undisputed matters of public record”). To the extent that the
district court erred by referencing testimony in West’s prior criminal trial, we find
no reversible error because the district court based its decision not on information
outside the record, but on deficiencies in the amended complaint. See La. Mun.
Police Emps.’ Ret. Sys. v. Wynn, 829 F.3d 1048, 1063–64 (9th Cir. 2016) (finding
no reversible error when “even if the district court’s reference to extrinsic materials
were excised, its analysis would still be sufficient to uphold its conclusions.”).
West’s requests for appointment of counsel on appeal (Docket Entry Nos. 55
and 62) and request for judicial notice (Docket Entry No. 58) are DENIED.
AFFIRMED.

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