David Upton v. Aref Fakhoury, in his individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID UPTON,
Plaintiff-Appellant,
v.
AREF FAKHOURY, in his individual and
official capacity as Warden of California
Institution for Men; et al.,
Defendants-Appellees.
No. 19-55811
D.C. No. 5:13-cv-02359-AB-PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Former California state prisoner David Upton appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (cross motions for
* 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
JAN 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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summary judgment); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal
pursuant to Fed. R. Civ. P. 12(b)(6)). We affirm.
The district court properly granted summary judgment for defendants
Blackmon and Payne because Upton failed to raise a genuine dispute of material
fact as to whether the sanctions imposed by these defendants caused the change in
Upton’s sentence. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no genuine issue for
trial.” (citation and internal quotation marks omitted).
The district court properly dismissed Upton’s claims against defendants
Fakhoury, Duarte, and Garcia because Upton failed to allege facts sufficient to
show that these defendants were personally involved in any alleged deprivation of
Upton’s constitutional rights or not immune from liability. See Engebretson v.
Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (holding prison officials are
immune from liability under § 1983 for enforcing a facially valid court order);
Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (because § 1983 suits do not
support vicarious liability, plaintiffs must demonstrate defendants are individually
liable for violations).
The district court properly denied Upton’s motions for judgment on the
pleadings against non-parties Williams and the California Department of

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Correction and Rehabilitation. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.
1983) (holding that a court “may not attempt to determine the rights of persons not
before the court”).
The district court did not abuse its discretion in striking Upton’s proposed
First Amended Complaint because the proposed complaint added claims and
defendants to the case. See Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir. 1990) (setting forth standard of review and concluding denial
of leave to amend was justified when new claims “would have greatly altered the
nature of the litigation” and “would have required defendants to have undertaken,
at a late hour, an entirely new course of defense”).
The district court did not abuse its discretion in denying Upton’s motions to
consolidate. See Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008)
(setting forth standard of review and explaining that a district court has broad
discretion to consolidate actions).
The district court did not abuse its discretion in denying Upton’s motions to
have the United States Attorney General and United States Department of Justice
provide amicus briefs. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)
(holding district courts have broad discretion in appointing amicus curiae),
abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
We reject as meritless Upton’s contention that the district court erred by

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declining to certify to the United States Attorney General the fact that Upton was
challenging the constitutionality of federal statutes.
The district court did not abuse its discretion in denying Upton’s motions for
reconsideration because Upton set forth no valid grounds for reconsideration. See
Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration
under Rules 59 and 60).
The district court properly denied Upton’s motion for attorney’s fees. See
Kay v. Ehrler, 499 U.S. 432, 435 (1991) (“[A] pro se litigant who is not a lawyer is
not entitled to attorney’s fees.”).
All pending motions and requests are denied.
AFFIRMED.

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