                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE NINTH CIRCUIT
                                                                              APR 20 2018
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
LAWRENCE EVERETT WILGUS,                         No.   15-15715

              Plaintiff-Appellant,               D.C. No.
                                                 3:13-cv-00368-MMD-WGC
 v.

BRUCE R. BANNISTER; CATHRINE                     MEMORANDUM*
MASTO CORTEZ; DON POAG; JOHNS,
Dr.; SCOTT, Dr.; JACK PALMER; E. K.
MCDANIELS; JAMES COX; J.
BUCHANAN; JOHN PERRY; KAREN
GEDNEY; BELLANGER; WATERS; R.
HERRERA; REX REED; ROBERT
LEGRAND, Warden; STEVE SUWE,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding

                            Submitted April 18, 2018**
                             San Francisco, California

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

      *
             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).
      Lawrence Everett Wilgus, a former Nevada state prisoner, appeals pro se

from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

deliberate indifference to his medical needs and other claims relating to his

confinement. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Ford v. City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013). We may affirm on

any basis supported by the record, Gordon v. Virtumundo, Inc., 575 F.3d 1040,

1047 (9th Cir. 2009), and we affirm.

      The district court properly granted summary judgment on Wilgus’s due

process claim regarding his classification and transfer between prisons because

Wilgus failed to raise a genuine dispute of material fact as to a protected liberty

interest. See Wilkinson v. Austin, 545 U.S. 209, 221-23 (2005) (discussing liberty

interests under the due process clause); see also Sandin v. Conner, 515 U.S. 472,

484 (1995) (state law only creates liberty interests deserving protection under the

Fourteenth Amendment's Due Process Clause when prison officials impose

“atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life”). We reject as unsupported by the record Wilgus’s

contentions that the change in classification was a form of discipline and that it

resulted in a longer prison sentence.




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      The district court properly dismissed Wilgus’s excessive force claim because

Wilgus failed to identify the John Doe defendant after completing discovery. See

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (use of John Doe defendant

permitted through the close of discovery).

      The district court properly granted summary judgment on Wilgus’s

deliberate indifference claim because Wilgus failed to raise a genuine issue of

material fact as to whether defendants were aware of and disregarded an excessive

risk to Wilgus’s health. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

2004) (elements of deliberate indifference claim).

      The district court properly granted summary judgment on Wilgus’s claim of

supervisory liability because Wilgus failed to raise a genuine dispute of material

fact as to whether there was any underlying constitutional violation. See Starr v.

Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for supervisory liability

under § 1983).

      The district court did not err by denying Wilgus an opportunity to amend his

complaint to add retaliation claims where Wilgus did not request an opportunity to

amend and both the amendment and discovery deadlines set in the scheduling order

had passed. See In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716,

739 (9th Cir. 2013) (“Late amendments to assert new theories are not reviewed


                                          3                                   15-15715
favorably when the facts and the theory have been known to the party seeking

amendment since the inception of the cause of action.”); cf. DRK Photo v.

McGraw–Hill Glob. Educ. Holdings, LLC, 870 F.3d 978, 988-89 (9th Cir. 2017)

(recognizing good cause standard applicable to requests to amend after the

deadline set in the scheduling order has passed).

      We reject as meritless Wilgus’s contentions concerning ineffective

assistance of counsel. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th

Cir. 1985) (“Generally, a plaintiff in a civil case has no right to effective assistance

of counsel.”).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      Wilgus’s motion to supplement the record (Docket Entry No. 11) is denied.

      AFFIRMED.




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