Toy Terrell Smith v. K. Cruse; D. Melton; N. Navarro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOY TERRELL SMITH,
Plaintiff - Appellant,
v.
K. CRUSE; D. MELTON; N. NAVARRO,
Defendants - Appellees.
No. 12-16134
D.C. No. 4:10-cv-03684-SBA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted May 15, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
Plaintiff Toy Smith appeals the district court’s grant of summary judgment
in favor of defendants K. Cruse, D. Melton, and N. Navarro on Smith’s claims
under 42 U.S.C. § 1983. Smith also appeals the district court’s denial of his
request for appointment of counsel. Finally, Smith appeals the district court’s
failure to rule on his negligence claim against Cruse and Melton under California
law. We affirm in part, reverse in part, and remand.
FILED
MAY 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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We affirm the district court’s grant of summary judgment to Cruse, Melton,
and Navarro on Smith’s § 1983 claims. Summary judgment was proper on Smith’s
Eighth Amendment claim against Cruse and Melton because the conclusory
allegations in Smith’s verified complaint are not sufficient to create a genuine
dispute of material fact on whether Cruse or Melton actually knew that Smith’s
enemy was being transferred into Smith’s facility. See Estate of Ford v. Ramirez-
Palmer, 301 F.3d 1043, 1052 (9th Cir. 2002) (“[N]egligence, or failure to avoid a
significant risk that should be perceived but wasn’t, ‘cannot be condemned as the
infliction of punishment.’” (quoting Farmer v. Brennan, 511 U.S. 825, 838
(1994))). The district court did not “abuse its discretion in granting . . . summary
judgment without permitting further discovery” because Smith “failed to request
further discovery.” Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 678 (9th Cir.
2005).
Summary judgment was proper on Smith’s Fourteenth Amendment
procedural due process claim against Navarro because Smith had no liberty interest
in the outcome of the disciplinary proceedings, see Sandin v. Conner, 515 U.S.
472, 487 (1995), and because “some evidence” supported the misconduct finding,
Burnsworth v. Gunderson, 179 F.3d 771, 772 (9th Cir. 1999) (quoting
Superintendent v. Hill, 472 U.S. 445, 457 (1985)). We note that Smith brought
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only a procedural due process claim against Navarro, not a claim for retaliation.
See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997).
The district court did not abuse its discretion in finding that there were no
“exceptional circumstances” requiring the appointment of counsel under 28 U.S.C.
§ 1915(e)(1). See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). Smith
did not show the “requisite likelihood of success” on his claims. Rand v. Rowland,
113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154
F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). Smith’s filings, which were
“generally articulate and organized,” demonstrated a sufficient ability to articulate
his claims in light of the complexity of the case. Id.
The district court did not address Smith’s negligence claim against Cruse
and Melton in either its summary judgment order or its screening order under 28
U.S.C. § 1915A. Therefore, we reverse and remand only for the district court to
rule on Smith’s negligence claim. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir. 1992). We otherwise affirm. Each side shall bear its own costs on
appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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