Davis v. Hutcheson

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DON ANGELO DAVIS, No. 23-2419 D.C. No. 2:20-cv-00077-DJC-DMC Plaintiff - Appellant, v. MEMORANDUM* R HUTCHESON; MATTHEWS, Unit Housery Officer; High Desert State Prison; MARION SPEARMAN, Warden; High Desert State Prison; RALPH DIAZ, Office of the Secretary; C.D.C.R, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Daniel J. Calabretta, District Court, Presiding Submitted April 22, 2025** Before: GRABER, H.A. THOMAS, and JOHNSTONE, Circuit Judges. California state prisoner Don Angelo Davis appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging a First * 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). Amendment retaliation claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment for defendant Hutcheson because Davis failed to raise a genuine dispute of material fact as to whether Hutcheson took Davis’s missing items from the boxes containing his personal property. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (setting forth elements of a First Amendment retaliation claim in the prison context); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (explaining that liability under § 1983 requires personal participation by the defendant in the alleged rights deprivation). We do not consider 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. 2 23-2419