                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DONALD HERRICK,                                  No.   16-35820

              Plaintiff-Appellant,               D.C. No. 3:15-cv-05779-RBL

 v.
                                                 MEMORANDUM*
MARK STRONG; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 7, 2018
                               Seattle, Washington

Before: THOMAS, Chief Judge, and McKEOWN and CHRISTEN, Circuit
Judges.


      Donald Herrick, a civil detainee housed at a Special Commitment Center

(“SCC”) pending civil commitment adjudication under Washington’s Sexually

Violent Predator Act, Wash. Rev. Code § 71.09.40, appeals the district court’s

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
grant of summary judgment in favor of Defendants on his 42 U.S.C. § 1983 and

state law claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We

review de novo a district court’s grant of summary judgment, Jones v. Blanas, 393

F.3d 918, 926 (9th Cir. 2004), and for abuse of discretion a district court’s order

staying discovery. Lazar v. Kroncke, 862 F.3d 1186, 1193 (9th Cir. 2017).

Because the parties are familiar with the history of this case, we need not recount it

here.

                                           I

        The district court properly applied Turner v. Safley, 482 U.S. 78 (1987) to

Herrick’s claims regarding personal mail because these claims, like the mail claims

at issue in Turner, are grounded in the First Amendment. Contrary to Herrick’s

assertion, Youngberg v. Romeo, 457 U.S. 307 (1982), which involved a substantive

due process challenge, is inapposite. Where an Amendment “provides an explicit

textual source of constitutional protection against [a particular sort of government

behavior], that Amendment, not the more generalized notion of substantive due

process, must be the guide for analyzing such a claim.” Graham v. Connor, 490

U.S. 386, 395 (1989).

        The district court appropriately emphasized Herrick’s status as a detainee

under civil process, rather than criminal, when evaluating all of his claims, noting


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that any restriction on Herrick’s rights could not be punitive. See Jones, 393 F.3d

at 932 (“[A]n individual detained under civil process—like an individual accused

but not convicted of a crime—cannot be subjected to conditions that ‘amount to

punishment.’”). The district court’s application of Turner to Herrick’s claims

regarding personal mail is consistent with our precedent analyzing the

constitutional claims of pretrial detainees. See, e.g., Mangiaracina v. Penzone, 849

F.3d 1191, 1197 (9th Cir. 2017) (applying Turner to First Amendment challenge of

mail policy brought by pretrial detainees); Pierce v. Cty. of Orange, 526 F.3d 1190,

1209-13 (9th Cir. 2008) (applying Turner to First Amendment challenge brought

by pretrial detainees).

      Herrick’s reliance on Houghton v. South, 965 F.2d 1532 (9th Cir. 1992) is

similarly misplaced. Houghton held that a director of state institutions failed to

meet his burden on qualified immunity because he did not provide evidence of his

professional qualifications or any basis for his treatment-related decision. Id. at

1537. This was a straightforward application of Youngberg, which established the

burden that “[l]ong-term treatment decisions normally should be made by persons

with degrees in medicine or nursing, or with appropriate training in areas such as

psychology.” Id. at 1537 (citing Youngberg, 457 U.S. at 323 n.30). However,

Youngberg expressly acknowledged that “day-to-day decisions” made by


                                           3
employees, like SCC mail room staff, are not subject to these same standards. 457

U.S. at 323 n.30. The Houghton rationale does not apply to the day-to-day sorting

and delivery decisions made by SCC staff members working in the mail room.

      In sum, the district court properly analyzed and applied the Turner factors in

granting summary judgment on Herrick’s First Amendment claims regarding

alleged interference with mail.

                                          II

      The Magistrate Judge’s decision to grant Defendants’ motion to stay was not

an abuse of discretion. Although summary judgment generally should not be

granted before the completion of discovery, see e.g., Klingele v. Eikenberry, 849

F.2d 409, 412 (9th Cir. 1988), a stay of discovery was appropriate here because

qualified immunity’s determinative impact constitutes more than just a defense to

liability—it is immunity from suit altogether. Pearson v. Callahan, 555 U.S. 223,

231 (2009) (Qualified immunity is “an immunity from suit rather than a mere

defense to liability.” (internal quotation marks omitted)).

      Additionally, “[a] district court is vested with broad discretion to permit or

deny discovery, and a decision ‘to deny discovery will not be disturbed except

upon the clearest showing that the denial of discovery results in actual and

substantial prejudice to the complaining litigant.’” Laub v. U.S. Dep’t of Interior,


                                           4
342 F.3d 1080, 1093 (9th Cir. 2003). Herrick fails to establish that he suffered any

prejudice because of the discovery stay especially considering the district court

gave him the option to ask for additional discovery if he needed it, but he never

took advantage of that opportunity.

                                         III

      The district court properly granted summary judgment on the remainder of

Herrick’s multiple claims for the reasons provided in the thorough Magistrate

Judge’s Report and Recommendation dated August 22, 2016.



      AFFIRMED.




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