                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         DEC 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GREGORY ALLEN FRANKLIN,                         No.    17-55470

                Plaintiff-Appellant,            D.C. No. 3:11-cv-01240-JAH-BGS

 v.
                                                MEMORANDUM*
J. JIMENEZ, Lieutenant; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Gregory Allen Franklin appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging retaliation, deliberate

indifference, and due process claims. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo cross-motions for summary judgment. Guatay



      *
             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).
Christian Fellowship v. County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).

We affirm.

      The district court properly granted summary judgment on Franklin’s

retaliation claims against defendants Hughey, Molina-Mata, Maciel, and Jimenez

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

complaint he filed in 2007, which was against prison officers who are not a party

to this action, was the motivating factor behind the alleged retaliation. See Rhodes

v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a

retaliation claim in the prison context); Pratt v. Rowland, 65 F.3d 802, 807-08 (9th

Cir. 1995) (to prevail on a retaliation claim, a plaintiff’s speech must be the

motivating factor behind the retaliatory conduct).

      The district court properly granted summary judgment on Franklin’s

deliberate indifference claims against defendants Hughey, Molina-Mata, and

Maciel because Franklin failed to raise a triable dispute as to whether these

defendants knew of and disregarded an excessive risk to Franklin’s serious medical

needs. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison

official is deliberately indifferent only if he or she knows of and disregards an

excessive risk to inmate health); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

1992) (“A serious medical need exists if the failure to treat a prisoner’s condition

could result in further significant injury or the unnecessary and wanton infliction of


                                           2                                      17-55470
pain.” (citation and internal quotation marks omitted)) overruled on other grounds

by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

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

process claim against defendant Maciel relating to the failure to deliver a quarterly

package because Franklin had an adequate post-deprivation remedy under

California law. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per

curiam) (prisoner failed to state a due process claim because California provides an

adequate post-deprivation remedy).

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

process claim against defendant Jimenez premised on disciplinary proceedings

because Franklin failed to raise a triable dispute as to whether he failed to receive

the proper procedural safeguards, and whether the hearing officer’s findings was

not supported by some evidence. See Superintendent v. Hill, 472 U.S. 445, 455-56

(1985) (requirements of due process are satisfied if “some evidence” supports the

disciplinary decision); Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974) (setting

forth due process requirements during a prison disciplinary proceeding).

      The district court did not abuse its discretion by denying Franklin leave to

amend his complaint because amendment would have been futile and would have

caused undue prejudice to defendants. See Foman v. Davis, 371 U.S. 178, 182

(1962) (reasons justifying denial of leave to amend); Lopez v. Smith, 203 F.3d


                                          3                                     17-55470
1122, 1130 & n. 12 (9th Cir. 2000) (en banc) (standard of review).

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

for a preliminary injunction against prison officers at another prison. See Winter v.

NRDC, 555 U.S. 7, 24 (2008) (factors in considering whether to grant a

preliminary injunction); Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750,

752-53 (9th Cir. 1982) (explaining limited scope of review).

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

for an extension of scheduling order deadlines. See Zivkovic v. S. Cal. Edison Co.,

302 F.3d 1080, 1087 (9th Cir. 2002) (standard of review for motion to modify

scheduling order); Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839,

844 (9th Cir. 1994) (standard of review for motion to conduct additional

discovery).

      Franklin’s motion to file an oversized reply brief (Docket Entry No. 22) is

granted. The Clerk shall file the reply brief at Docket Entry No. 19.

      AFFIRMED.




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