TOMMIE LEE MCDOWELL, Jr. v. Hulsey; Ward; K. Cholico- Baltierra; William Reubart; Tichina Sandoval; Frederic Hammel

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMMIE LEE MCDOWELL, Jr.,
Plaintiff-Appellant,
v.
HULSEY; WARD; K. CHOLICO-
BALTIERRA; WILLIAM REUBART;
TICHINA SANDOVAL; FREDERIC
HAMMEL,
Defendants-Appellees.
No. 22-15266
D.C. No.
3:19-cv-00230-MMD-CSD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted December 5, 2022**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Nevada prisoner Tommie McDowell appeals pro se from the district court’s
summary judgment in favor of Defendants Timothy Hulsey and William Reubart
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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in his 42 U.S.C. § 1983 action claiming they retaliated against him, and from the
district court’s dismissal with prejudice of his due process claim. See U.S. Const.
amends. I, XIV. We review de novo,1 and we affirm.
The district court properly granted Defendant Hulsey’s motion for summary
judgment on Claim 1 on the ground that evidence of a critical element of
retaliation—that Hulsey himself took an adverse action against McDowell—was
lacking. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548,
2552, 91 L. Ed. 2d 265 (1986); Brodheim, 584 F.3d at 1269 (elements of
retaliation). While McDowell’s evidence2 placed Hulsey at the scene, it was
insufficient for a rational juror to find in McDowell’s favor on the question of
Hulsey’s personal participation in confiscating his property. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356,
89 L. Ed. 2d 538 (1986); see also Hopkins v. Bonvicino, 573 F.3d 752, 769–70 (9th
Cir. 2009); Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002). Moreover, the
district court correctly determined that the inconsistency in the record regarding the
1 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014); Brodheim v. Cry,
584 F.3d 1262, 1267 (9th Cir. 2009).
2 The evidence includes the allegations of McDowell’s verified complaint,
see Schroeder v. McDonald, 55 F.3d 454, 460 & n.10 (9th Cir. 1995), but not
assertions made in other papers without attestation. See S.A. Empresa De Viaca
Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., Inc., 690 F.2d 1235,
1238 (9th Cir. 1982); cf. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
2

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date of the confiscation was necessarily immaterial in light of McDowell’s failure
to adduce evidence of Hulsey’s own actions. See Celotex, 477 U.S. at 322–23, 106
S. Ct. at 2552; see also Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d
1119, 1125 (9th Cir. 2014). By the same token, the district court properly granted
Hulsey’s motion for summary judgment on Claim 2 on the ground that McDowell
had failed to present evidence tending to show that Hulsey was involved in the
detention or return of McDowell’s property. There was no evidence in this record
that Hulsey possessed or withheld McDowell’s property.
The district court also properly entered judgment in favor of Defendant
Reubart on McDowell’s Claim 4 on the ground that Reubart had presented
evidence that he was not involved in the reactivation of McDowell’s Florida
detainer, and McDowell had provided no evidence to the contrary. Although
McDowell argues that the district court should not have believed Reubart, it could
not make credibility determinations at summary judgment. See Zetwick v. County
of Yolo, 850 F.3d 436, 441 (9th Cir. 2017). McDowell failed to adduce evidence
of Reubart’s involvement in the activation or deactivation of any inmate detainers,
3

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let alone any evidence that he reactivated McDowell’s detainer in retaliation for
McDowell’s filing a lawsuit in May 2019.3
The district court properly dismissed McDowell’s substantive due process
claim with prejudice at screening. See 28 U.S.C. § 1915A(b)(1). Not only did
McDowell lack a due process interest in the detainer’s effect on his prison
classification,4 but also his allegations do not meet the applicable shocks-the-
conscience standard.5
AFFIRMED. McDowell’s motion for appointment of counsel (9th Cir.
Dkt. 21) is DENIED.
3 That the detainer was reactivated several months after the lawsuit was filed
does not by itself create an inference of retaliation or responsibility on the part of
Reubart. See Wood v. Yordy, 753 F.3d 899, 904–05 (9th Cir. 2014); Pratt v.
Rowland, 65 F.3d 802, 808 (9th Cir. 1995).
4 See Moody v. Daggett, 429 U.S. 78, 87–88, 88 n.9, 97 S. Ct. 274, 279 &
n.9, 50 L. Ed. 2d 236 (1976).
5 See County of Sacramento v. Lewis, 523 U.S. 833, 848–49, 854, 118 S. Ct.
1708, 1717–18, 1720, 140 L. Ed. 2d 1043 (1998).
4

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