                                                                              FILED
                             NOT FOR PUBLICATION                               NOV 01 2010

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




                             FOR THE NINTH CIRCUIT



JOHN A. FABRICIUS, II,                             No. 09-16763

               Plaintiff - Appellant,              D.C. No. 2:06-cv-01105-MHM

  v.
                                                   MEMORANDUM *
MARICOPA COUNTY; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

       John A. Fabricius, II, a pre-trial detainee, appeals pro se from the district

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

Amendment violation based on the playing of holiday music, the denial of his due

process rights during a disciplinary hearing, and the denial of his right to access the

          *
             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).
courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Inouye

v. Kemna, 504 F.3d 705, 711 (9th Cir. 2007). We affirm.

      The district court properly granted summary judgment on the Establishment

Clause claim because Fabricius failed to raise a genuine issue of material fact as to

whether the playing of holiday music had a secular purpose or whether it had the

principal or primary effect of advancing religion. See Lemon v. Kurtzman, 403

U.S. 602, 612-13 (1971) (setting forth test for Establishment Clause violations).

      The district court properly granted summary judgment on the due process

claim because Fabricius failed to raise a genuine issue of material fact as to

whether he was afforded the protections outlined in Wolff v. McDonnell, 418 U.S.

539, 563-70 (1974). Morever, the record supports defendant Fisher’s decision not

to call witnesses at the disciplinary hearing. See id. at 566 (prison officials may

refuse to call witnesses based on “irrelevance, lack of necessity, or the hazards

presented in individual cases”).

      The district court properly granted summary judgment on the access-to-

courts claim because Fabricius failed to establish that defendant Mangan

“personally participated in or directed a violation.” James v. Rowlands, 606 F.3d

646, 653 n.3 (9th Cir. 2010); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (there is no supervisory liability in section 1983 actions).


                                           2                                     09-16763
      We have considered the remaining issues that Fabricius raises on appeal and

conclude that his contentions are unpersuasive.

      AFFIRMED.




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