                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 20 2012

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



                            FOR THE NINTH CIRCUIT


JAMES LEE MATHEWS,                               No. 09-15095

              Plaintiff - Appellant,             D.C. No. 2:06-CV-00286-GEB-
                                                 JFM
  v.

COUNTY OF BUTTE; et al.,                         MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Garland E. Burrell, District Judge, Presiding

                             Submitted June 15, 2012**
                              San Francisco, California

Before: D.W. NELSON, GOULD, and BEA, Circuit Judges.

       James Lee Mathews appeals the district court’s grant of summary judgment

to Butte County, and employees of the Butte County Jail (“Jail”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


        *
             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).
      As an initial matter, the district court did not abuse its discretion in

excluding several untimely declarations pursuant to Federal Rule of Civil

Procedure 37(c)(1). Given Mathews’ failure to oppose the Motion to Strike the

declarations, it was reasonable for the district court to conclude that Mathews did

not disclose the declarants’ identities pursuant to Rule 26 and that this omission

was not substantially justified or harmless. Id.

      The district court properly granted summary judgment. First, Mathews has

not adduced evidence from which a jury could conclude that Deputy Engasser’s

use of force amounted to punishment in violation of the Due Process Clause of the

Fourteenth Amendment.1 It is undisputed that Mathews refused to obey Engasser’s

commands four times in a row. Moreover, although Engasser initially threatened

to use mace, he promptly put it away. Even when taking the facts in the light most

favorable to Mathews, no jury could find that Engasser acted “maliciously and

sadistically for the very purpose of causing harm.” Clement v. Gomez, 298 F.3d

898, 903 (9th Cir. 2002) (internal quotation marks omitted).

      Mathews’ remaining claims cannot overcome summary judgment. He has

failed to present evidence sufficient for a jury to conclude (1) that the Jail staff

      1
        Because Mathews did not allege a Fourth Amendment claim, we express
no view on whether Engasser’s use of force was objectively unreasonable under
the Fourth Amendment.

                                           -2-
tampered with his legal mail; (2) that the Jail staff made comments to him that

were “unusually gross even for a prison setting and were calculated to and did

cause him psychological damage,” Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.

1996); or (3) that he was harmed by the Jail’s deliberate indifference to his serious

medical need, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Nor has

Mathews alleged an act of retaliation that has satisfied the exhaustion requirement

of the Prison Litigation Reform Act. 42 U.S.C. § 1997e(a). Finally, because there

was no constitutional violation, the district court was correct not to rule on any

claim brought under Monell v. Dep't of Soc. Servs. New York, 436 U.S. 658, 694

(1978). See Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996).

      AFFIRMED.




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