                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 10 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DANNY F. ATTERBURY,                              No. 12-17262

               Plaintiff - Appellant,            D.C. No. 5:11-cv-02387-LHK

  v.
                                                 MEMORANDUM*
DENISE DALY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Danny F. Atterbury appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action arising from the collection of his DNA

before being released from civil commitment after pleading not guilty by reason of

insanity to attempted murder. We have jurisdiction under 28 U.S.C. § 1291. We

          *
             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).
review de novo, Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009), and we

affirm.

      The district court properly granted summary judgment on Atterbury’s

retaliation claim because Atterbury failed to raise a genuine dispute of material fact

as to whether defendant ordered the collection of his DNA sample because of his

alleged complaints against her, her department, or the hospital where he was

committed, and whether the collection of DNA failed to advance a legitimate

correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

(First Amendment retaliation claims require plaintiff to show that an adverse action

was taken against him because of his protected conduct, and that the action

reasonably advanced a legitimate correctional goal).

      The district court properly granted summary judgment on Atterbury’s

unreasonable search and seizure claim on the basis of qualified immunity because

California state law requires those found not guilty by reason of insanity of a

felony to provide a DNA sample, and Atterbury’s right to be free of this

requirement under the Fourth Amendment is not clearly established. See Cal.

Penal Code § 296(a)(1) (requiring collection of a DNA sample from any person

found not guilty by reason of insanity of any felony offense); Pearson v. Callahan,

555 U.S. 223, 232-36 (2009) (describing qualified immunity analysis).


                                          2                                       12-17262
      Atterbury’s contentions regarding the district court’s alleged failure to

construe his allegations liberally, to consider arguments regarding the collection of

DNA from other patients, to grant him leave to amend, to exclude unauthenticated

evidence, to allow him a hearing on the merits of his claims, and to stay this action

pending a decision in Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh’g en banc

granted, 686 F.3d 1121 (9th Cir. 2012), are unpersuasive.

      Issues raised for the first time in Atterbury’s reply brief regarding the need

for discovery and the alleged abuse that patients suffer at the hospital during their

civil commitment are deemed waived. See Graves v. Arpaio, 623 F.3d 1043, 1048

(9th Cir. 2010) (per curiam).

      AFFIRMED.




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