NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH ADAIR DAVIS, No. 17-35943

Plaintiff-Appellant, D.C. No. 3:16-cv-05129-BHS

v.

MEMORANDUM*

WASHINGTON STATE DEPARTMENT

OF CORRECTIONS, Secretary and Assistant Secretary; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted August 18, 2021**

Before: D.W. NELSON, CANBY, and SILVERMAN, Circuit Judges.

Washington state prisoner Keith Adair Davis appeals pro se from the district

court’s summary judgment for defendant prison officials in Davis’ action alleging

violations of his civil rights and the American with Disabilities Act. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo, Albino v. Baca, 747 F.3d

1162, 1168 (9th Cir. 2014), and we affirm.

The district court properly granted summary judgment on Davis’ supervisory

liability claims because Davis failed to raise a genuine dispute of material fact as to

whether any supervisory defendants personally participated in any violation of

Davis’ constitutional rights. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 798

(9th Cir. 2018).

The district court properly granted summary judgment on Davis’ retaliation

claims because Davis failed to raise a genuine dispute of material fact as to

whether any defendant engaged in retaliatory conduct, whether his speech was

chilled as a result of defendants’ actions, or whether the allegedly adverse actions

did not advance legitimate goals of the institution. Wood v. Yordy, 753 F.3d 899,

905 (9th Cir. 2014) (finding that “mere speculation that defendants acted out of

retaliation is not sufficient”); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995);

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005); Barnett v. Centoni, 31

F.3d 813, 816 (9th Cir. 1994).

The district court properly granted summary judgment on Davis’ Eighth

Amendment claims challenging the conditions of his confinement. First, Davis’

claims that defendants verbally harassed him are not colorable because verbal

threats and harassment do not constitute a constitutional violation. Gaut v. Summ,

2 17-35943 810 F.2d 923, 925 (9th Cir. 1987). Second, summary judgment on Davis’ claims

that he did not receive wheelchair accessible housing was proper because Davis

failed to raise a triable issue of fact whether he was denied appropriate housing in

wheelchair accessible cells or reasonable alternative accommodations. Johnson v.

Lewis, 217 F.3d 726, 731–33 (9th Cir. 2000). Third, summary judgment on Davis’

claim that he was exposed to asbestos or lead paint was proper because Davis

failed to raise a triable issue of fact whether any defendant was deliberately

indifferent to Davis’ exposure to an unreasonably high level of either toxin.

Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The district court properly granted summary judgment on Davis’ Eighth

Amendment claims challenging medical care because Davis failed to raise a

genuine dispute of material fact as to whether any defendant knew of and

disregarded an excessive risk to Davis’ health or safety. Toguchi v. Chung, 391

F.3d 1051, 1057, 1060 (9th Cir. 2004). The district court properly determined that

Davis’ allegations reflected, at best, a difference of medical opinion, which is

insufficient to show deliberate indifference. Id.

Summary judgment was proper on Davis’ Fourteenth Amendment claim that

he was excluded from a disciplinary hearing because Davis had no protected right

to attend the hearing after Davis was removed for being abusive to staff, and the

record reflected that Davis waived his right to call witnesses or to present witness

3 17-35943 statements. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

The district court properly granted summary judgment on Davis’ ADA

claims because Davis failed to raise a genuine dispute of material fact as to

whether defendants failed to provide Davis either with wheelchair accessible

housing and showers, or with reasonable alternative accommodations. See, e.g,

A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir.

2016).

The district court properly granted summary judgment on Davis’ claim that

he was denied access to a grievance process, because Davis has no constitutional

right to one. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

Adams, 855 F.2d 639, 640 (9th Cir. 1988).

The district court properly granted summary judgment on Davis’ civil

conspiracy claims because Davis merely alleged that the defendants were “in

league” with one another, without explaining the substance of the alleged

conspiracy. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999);

Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989).

The district court properly dismissed Davis’ access to court claims because

Davis failed to demonstrate evidence that he suffered an actual injury. Lewis v.

Casey, 518 U.S. 343, 349 (1996) (setting forth standard of review and elements of

an access to courts claim).

4 17-35943 The district court did not abuse its discretion in denying Davis’ discovery

motions for additional time to conduct discovery because Davis’ motion for

additional time to conduct discovery failed to identify what discovery he sought, or

why he had not completed discovery during the discovery period, and his motion

to compel related to discovery requests that were untimely. Century 21 Real

Estate Corp. v. Sandlin, 846 F.2d 1175, 1181 (9th Cir. 1988) (setting forth standard

of review and addressing motion for extension of time); Laub v. U.S. Dep’t of

Interior, 342 F.3d 1080, 1084 (9th Cir. 2003) (motion to compel).

The district court did not abuse its discretion in overruling his objections to

the magistrate judge’s report and recommendation, or in denying Davis’ motion for

reconsideration, after Davis rehashed arguments previously made, or came forward

with only irrelevant new evidence. U.S. v. Howell, 231 F.3d 615, 621–23 (9th Cir.

2000); Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993) (standard of review).

We decline to 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.

5 17-35943