                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 17 2013

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



                              FOR THE NINTH CIRCUIT


LUIS JIMENEZ GONZALES,                           No. 11-35852

                Plaintiff - Appellant,           D.C. No. 1:09-cv-00932-CL

  v.
                                                 MEMORANDUM*
LARRY BLANTON, Sheriff; et al.,

                Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding**

                             Submitted January 15, 2013***

Before:         SILVERMAN, BEA, and NGUYEN, Circuit Judges

       Luis Jimenez Gonzales appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging that defendants violated his First



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and Eighth Amendment rights by confiscating his property and subjecting him to

restrictive housing in retaliation for his grievance activity. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the grant of summary judgment,

Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004), and for an abuse of discretion a

district court’s denial of leave to file an amended complaint, Chodos v. West

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002). We may affirm on any ground

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

2008), and we affirm.

      Summary judgment on Gonzales’ First Amendment retaliation claim was

proper because Gonzales failed to raise a genuine dispute of material fact as to

whether defendants retaliated against him because of constitutionally protected

grievance activity. 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 did not

reasonably advance a legitimate correctional goal).

      Summary judgment on Gonzales’ cruel and unusual punishment claim was

proper because Gonzales failed to raise a genuine dispute of material fact as to

whether he had been subjected to unconstitutional punishment. See Mitchell v.

Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (pretrial detainees may be subjected to


                                           2                                    11-35852
punishment for violations of prison rules or policies as long as they are provided a

due process hearing); see also Bell v. Wolfish, 441 U.S. 520, 547 (1979) (prison

officials “should be accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security”).

      The district court properly granted summary judgment on Gonzales’ state

law claims for negligence and intentional infliction of emotional distress because

Gonzales failed to comply with the Oregon Tort Claims Act’s mandatory notice

provisions. See Or. Rev. Stat. § 30.275(1) (“No action arising from any act or

omission of a public body or an officer, employee or agent of a public body . . .

shall be maintained unless notice of claim is given as required by this section.”).

      The district court did not abuse its discretion in denying Gonzales leave to

file a second amended complaint as Gonzales unduly delayed in seeking to amend

his complaint. See Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th Cir.

1981) (affirming denial of motion to amend raised after discovery was “virtually

complete” and while defendant’s motion for summary judgment was pending

before the court).

      AFFIRMED.




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