FILED

NOT FOR PUBLICATION

MAY 4 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN DARIO GARCIA, Jr., No. 19-56128

Plaintiff-Appellant, D.C. No. 3:14-cv-01525-JLS-RBM v.

K. SEELEY, D.O.; E. A. CANLAS, MEMORANDUM*

Medical Doctor; R. CLARKE; P.

NEWTON, M.D.; A. DENBELA; JODIE

RIVERA, Medical Department Inmate Appeals Coordinator; M. GLYNN, Inmate Medical Provider and Reviewer of Medical and Inmate Appeal Decisions; R. COBB;

R. OLSON, Inmate Appeals Coordinator;

J. RAMIREZ, Inmate Appeals

Coordinator; R. WALKER, D.O.; PAMELA VELARDI, Medical Services Provider; R. SCHARFFENBERG, M.D.; I. SEDIGHI, Medical Provider; L. MERITT, Medical Service Provider; L. SHEPPARD, Medical Services Provider; E. WORMAN; JOHN AND JANE DOES, Employed in Different Post Assignments, Medical Service Providers; Appeals Coordinator Staff; and Medical Health Service Provider,

Defendants-Appellees,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and

M. MARTINEZ,

Defendant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted May 3, 2021** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

California state prisoner Ruben Garcia appeals the district court’s summary

judgment in favor of various medical staff members at the Richard J. Donovan

Correctional Facility (“RJD”). He also appeals many of the district court’s earlier

orders, including its orders partially granting judgment on the pleadings and

motions to dismiss in favor of appeals and grievance personnel at RJD and medical

staff at another prison. We affirm.

The district court properly granted judgment on the pleadings and dismissed

Garcia’s Eighth Amendment deliberate indifference and Fourteenth Amendment

procedural due process claims. See Fed. R. Civ. P. 12(b)(6) & (c). Garcia did not

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 19-56128 plausibly allege deliberate indifference to his serious medical needs. See Toguchi

v. Chung, 391 F.3d 1051, 1057–58, 1060 (9th Cir. 2004). His allegations showed

no more than a difference of opinion between himself and prison medical staff

about the appropriate way to treat his pain stemming from carpal tunnel syndrome.

See id. at 1058. Likewise, Garcia did not plausibly allege violation of his right to

due process because prisoners do not have a liberty interest in a particular

grievance procedure and the procedures used here were adequate. See Ramirez v.

Galaza, 334 F.3d 850, 860–61 (9th Cir. 2003); see also Chappell v. Mandeville,

706 F.3d 1052, 1062–63 (9th Cir. 2013).

The district court also properly granted judgment on the pleadings and

dismissed Garcia’s First Amendment retaliation and 42 U.S.C. § 1983 conspiracy

claims against prison grievance and appeals personnel. See Fed. R. Civ. P.

12(b)(6) & (c). Garcia’s allegations did not show that responses to his complaints

were in any way intended to inhibit his First Amendment activities, or that anyone

conspired to retaliate against him because of those activities. See Rhodes v.

Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); Burns v. County of King, 883

F.2d 819, 821 (9th Cir. 1989) (per curiam). Nor did the district court err by later

granting summary judgment for RJD medical staff members on those claims.

Garcia did not raise genuine issues of material fact regarding his claims that RJD

3 19-56128 medical staff acted with retaliatory motives when they tapered him off pain relief

medication and did not prescribe more. See Rhodes, 408 F.3d at 567; see also

Wood v. Yordy, 753 F.3d 899, 904–05 (9th Cir. 2014). Evidence of the proximity

in time between Garcia’s initiation of a habeas action in state court about his

medical care and RJD medical staffs’ decision to taper him off of pain relief

medication was not by itself sufficient to create a triable issue as to retaliatory

motive. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995); see also Huskey v.

City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).

The district court did not abuse its discretion when it dismissed Garcia’s

claims against M. Martinez for failure to effect timely service when the action had

been pending for over four years. See Fed. R. Civ. P. 4(m); Walker v. Sumner, 14

F.3d 1415, 1422 (9th Cir. 1994), abrogated in part on other grounds by Sandin v.

Conner, 515 U.S. 472, 483–84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418 (1995).

Further, Garcia had not provided the U.S. Marshal with enough information to

serve Martinez, despite several extensions of time to do so. Likewise, it was not an

abuse of discretion to deny Garcia’s request for an extension of time to file a

Second Amended Complaint. See Fed. R. Civ. P. 6(b); Ahanchian v. Xenon

Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010). As the district court

indicated, an extension would unfairly “prejudice the Defendants in this action”

4 19-56128 because after four years of significant motion practice, the pleading phase was

over, discovery was closed, and trial was imminent. See Tindall v. First Solar Inc.,

892 F.3d 1043, 1048 (9th Cir. 2018).

We decline to review Garcia’s state law claim regarding violation of

regulations in Title 15 of the California Code of Regulations because he did not

raise it in the district court. See Baccei v. United States, 632 F.3d 1140, 1149 (9th

Cir. 2011). We also decline to review Garcia’s arguments regarding the magistrate

judge’s denial of his motions to appoint counsel and expert witnesses because he

did not timely raise them before the district judge. See Fed. R. Civ. P. 72(a);

Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); see also

Glenbrook Homeowners Ass’n v. Tahoe Reg’l Plan. Agency, 425 F.3d 611, 619

(9th Cir. 2005).

AFFIRMED.

5 19-56128