NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAWN DAMON BARTH, No. 23-15897

Plaintiff-Appellant, D.C. No. 2:19-cv-01874-WBS-DB

v.

MEMORANDUM*

JARED D. LAZANO, Warden; BROWN, Captain; I.S.U LOPEZ; A.W. MEDIA; EUSEBIO MONTEJO, Doctor,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted December 17, 2024**

Before: WALLACE, GRABER, and BUMATAY, Circuit Judges.

Shawn Damon Barth appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging violations of the First, Eighth,

and Fourteenth Amendments. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). review de novo. Hutchinson v. U.S., 838 F.2d 390, 392 (9th Cir. 1988). We

affirm.

The district court properly granted summary judgment on Barth’s Eighth

Amendment claim because Barth failed to raise a genuine dispute of material fact

as to whether defendant Montejo was deliberately indifferent to Barth’s serious

medical needs in taking away his walker. See Toguchi v. Chung, 391 F.3d 1051,

1058 (9th Cir. 2004) (explaining that a difference of opinion as to the proper

course of treatment for a medical condition is insufficient to establish an Eighth

Amendment violation).

The district court properly granted summary judgment on Barth’s First

Amendment retaliation claim because Barth failed to raise a genuine dispute of

material fact as to whether Montejo’s removal of Barth’s walker was not

reasonably related to legitimate penological goals. 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).

The district court properly granted summary judgment on Barth’s Fourteenth

Amendment claim because Barth failed to raise a genuine dispute of material fact

as to whether Montejo discriminated against him on the basis of his sexual

orientation. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013)

(explaining that to state an equal protection claim, a plaintiff must show that a

2 23-15897 defendant acted with an intent or purpose to discriminate against the plaintiff based

upon membership in a protected class).

The district court did not abuse its discretion in denying Barth’s request for

additional discovery under Federal Rule of Civil Procedure 56(d). See Midbrook

Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 612,

619-20 (9th Cir. 2017) (setting forth standard of review and explaining that to

prevail on a Rule 56(d) request, a party must show that the specific facts it seeks in

further discovery exist and are “essential to oppose summary judgment” (citation

and internal quotation marks omitted)).

The district court properly construed Barth’s Federal Rule of Civil

Procedure 60(a) motion as objections to the magistrate judge’s findings and

recommendations, and properly conducted a de novo review of the findings and

recommendation and Barth’s objections. See 28 U.S.C. § 636(b)(1)(C).

Barth’s motion for a jury trial (Docket Entry No. 28) is denied.

AFFIRMED.

3 23-15897