                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 26 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL A. HOLMBERG,                             No. 11-35146

               Plaintiff - Appellant,            D.C. No. 3:08-cv-05775-RJB

  v.
                                                 MEMORANDUM *
CHRISTINE O. GREGOIRE,

               Defendant,

  and

ELDON VAIL; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                            Submitted September 18, 2012 **

Before:        LEAVY, PAEZ, and NGUYEN, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Michael A. Holmberg, a Washington state prisoner, appeals pro se from the

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

defendants denied him access to his Mandatory Savings Account (“MSA”) to pay

for court fees in retaliation for his ongoing litigation activities. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary

judgment. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We affirm in part,

reverse in part, and remand.

      The district court properly granted summary judgment to defendant Vail

because Holmberg failed to raise a genuine dispute of material fact as to whether

Vail personally participated in the decision to deny Holmberg MSA access. See

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (a supervisor is only liable

where he “participated in or directed the violations, or knew of the violations and

failed to act to prevent them”).

      The district court granted summary judgment to defendants Van Boening

and Fitzpatrick after concluding that they denied Holmberg MSA access because

of a Department of Corrections policy that only allows access in the case of an

emergency. However, in opposition to summary judgment, Holmberg submitted

evidence suggesting that both Van Boening and Fitzpatrick routinely granted MSA

access to other prisoners to pay for their litigation activities despite the policy.


                                            2                                      11-35146
Holmberg also submitted evidence that he was a frequent litigator who had

multiple cases pending against various prison personnel, including Van Boening,

and that Holmberg sought MSA access here to pay the filing fee for a new case

against Van Boening. Viewed in the light most favorable to Holmberg, the

evidence raises a genuine dispute of material fact as to whether these defendants

retaliated against Holmberg. See Ylst, 351 F.3d at 1289-90 (reversing summary

judgment where a legitimate prison procedure may have been used as a pretext to

retaliate against an inmate for filing grievances). Accordingly, we reverse

summary judgment on Holmberg’s retaliation claim as to defendants Van Boening

and Fitzpatrick, and remand for further proceedings.

      On remand, the district court should consider whether to exercise

supplemental jurisdiction over Holmberg’s state law claims concerning his MSA

access. See Fredenburg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d

1176, 1183 (9th Cir. 1999).

      Issues not raised on appeal, including Holmberg’s claims arising from being

labeled a “rat” and being placed on a transfer list, are waived. See Cook v. Schriro,

538 F.3d 1000, 1014 n.5 (9th Cir. 2008).

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.


                                           3                                   11-35146
