Fox Joseph Salerno v. Jerry Dunn;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOX JOSEPH SALERNO,
Plaintiff-Appellant,
v.
JERRY DUNN; et al.,
Defendants-Appellees.
No. 16-17336
D.C. No. 2:13-cv-02250-ROS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted March 27, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Arizona state prisoner Fox Joseph Salerno appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional
claims arising from his placement in solitary confinement. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Porter v. Cal. Dep’t of Corr., 419
* 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
MAR 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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F.3d 885, 891 (9th Cir. 2005). We affirm.
The district court properly granted summary judgment on Salerno’s due
process claim because Salerno failed to raise a genuine dispute of material fact as
to whether his designation as a maximum security inmate and resulting placement
or maintenance in solitary confinement was not supported by “some evidence.”
See Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (segregation
decisions, such as putting a prisoner into solitary confinement, only need to be
supported by “some evidence”). Even though Salerno argues that the prison
officials improperly considered his suspected gang member status in designating
him as a maximum security inmate, he failed to raise a genuine dispute of material
fact as to whether he would have not been classified as a maximum security inmate
and placed in solitary confinement based on factors other than his suspected gang
member designation.
The district court properly granted summary judgment on Salerno’s claim
that prison policies designating inmates suspected gang members violated
Salerno’s due process rights because Salerno failed to identify a protected liberty
interest implicated by these policies. See Sandin v. Conner, 515 U.S. 472, 483-85
(1995) (a prisoner has no protected liberty interest when the sanction imposed
neither extends the length of his sentence nor imposes an “atypical and significant
hardship”); Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (due

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process procedural protections “adhere only when the disciplinary action
implicates a protected liberty interest”).
The district court properly focused the scope of this action on two
classification decisions in 2009. Salerno alleged generally in the operative first
amended complaint that his suspected gang member designation resulted in him
being classified to and maintained in maximum security status for five years. In
response to the district court’s order requesting clarification regarding the scope of
the action in preparation for trial, Salerno identified several orders over the course
of five years which he contended took into account his suspected gang member
status in maintaining his maximum security status. On the premise that Salerno
only alleged that he was labelled a suspected gang member in retaliation for a
protected activity that took place in 2009, the district court correctly ruled that only
two orders from 2009 formed the basis for Salerno’s action.
The district court did not abuse its discretion by vacating trial after it
determined that the only issues before the court were issues of law. See City of Los
Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.
2001) (district court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to be sufficient”
(citation omitted)); see also Switz. Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385
U.S. 23, 25 (1966) (“[T]he denial of a motion for a summary judgment because of

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unresolved issues of fact does not settle or even tentatively decide anything about
the merits of the claim. It is strictly a pretrial order that decides only one thing—
that the case should go to trial”). Salerno’s allegations that the district court
“claimed to have been confused about the nature of the case” is untrue. The
tortured journey of this case was caused entirely by Salerno’s constantly changing
claims and theories.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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