                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 20 2012

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




                             FOR THE NINTH CIRCUIT



GABRIEL RUDY CORTEZ,                             No. 11-17507

               Plaintiff - Appellant,            D.C. No. 5:09-cv-03021-EJD

  v.
                                                 MEMORANDUM *
MATTHEW CATE; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Gabriel Rudy Cortez, a California state prisoner, appeals pro se from the

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

process, equal protection, and First Amendment claims in connection with his




          *
             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).
validation as an associate of a prison gang and confinement in the security housing

unit (“SHU”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We may affirm on any ground

supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008). We affirm in part, reverse in part, and remand.

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

process claim relating to his 2008 validation as a prison gang associate because the

record shows that Cortez received notice and an opportunity to present his views

and there was “some evidence,” with sufficient indicia of reliability, in support of

the decision. See Bruce, 351 F.3d at 1287-88.

      The district court properly granted summary judgment on Cortez’s equal

protection claim because the procedures called for in the memorandum at issue

were racially neutral and narrowly tailored to address a compelling government

interest in prison security. See Johnson v. California, 543 U.S. 499, 511-13

(2005); Richardson v. Runnels, 594 F.3d 666, 671 (9th Cir. 2010).

      Summary judgment was proper on Cortez’s First Amendment claim that he

had a right to “benign association” with people of his own ethnic group without

being subjected to a risk of SHU confinement on the basis of such associations

because “the Constitution [does not] recognize[] a generalized right of ‘social


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association.’” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (activity protected

by First Amendment right of association includes “intimate association” and

“expressive association”); Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S.

119, 131 (1977) (prison officials may curtail prisoner’s associational rights if they

conclude such associations “possess the likelihood of disruption to prison order or

stability, or otherwise interfere with [] legitimate penological objectives”).

      The district court did not abuse its discretion by denying Cortez’s request for

appointment of counsel because Cortez failed to demonstrate exceptional

circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting

forth standard of review and listing factors to consider).

      The district court did not abuse its discretion by granting summary

judgment without allowing Cortez further discovery because Cortez did not show

how additional discovery would have affected the disposition of his case. See

Fed. R. Civ. P. 56(d); Barona Grp. of the Capitan Grande Band of Mission

Indians v. Am. Mgmt. & Amusement, Inc., 840 F.2d 1394, 1399-1400 (9th Cir.

1987) (denial of a request for additional discovery is proper where the moving

party “failed to explain how additional discovery would have affected the

disposition of the case”).

      However, the district court erred in granting summary judgment on Cortez’s


                                           3                                     11-17507
First Amendment retaliation claim when it improperly concluded that Cortez

could not refute that defendants had legitimate correctional goals for his gang

validation. Cortez provided evidence to create a genuine dispute of material fact

as to improper motive, and “prison officials may not defeat a retaliation claim on

summary judgment simply by articulating a general justification for a neutral

process, when there is a genuine issue of material fact as to whether the action was

taken in retaliation for the exercise of a constitutional right.” Bruce, 351 F.3d at

1289 (“[If . . . the defendants abused the gang validation procedure as a cover or a

ruse to silence and punish [the prisoner] because he filed grievances, they cannot

assert that [his] validation served a valid penological purpose, even though he may

have arguably ended up where he belonged.”). Accordingly, we reverse and

remand for further proceedings on this claim.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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