                                                                               FILED
                            NOT FOR PUBLICATION                                 JAN 13 2012

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



                            FOR THE NINTH CIRCUIT

DONALD COLE BURCHETT,                            No. 10-35763

              Plaintiff - Appellant,             D.C. No. 2:07-cv-00346-JLQ

  v.
                                                 MEMORANDUM*
ROBERT BROMPS and TODD WIGGS,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of Washington
              Justin L. Quackenbush, Senior District Judge, Presiding

                      Argued and Submitted August 30, 2011
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Plaintiff-Appellant Donald Burchett (“Burchett”) appeals the summary

judgment grant to defendant-appellee Robert Bromps (“Bromps”), Burchett’s parole

officer, in Burchett’s suit for violation of his First Amendment rights under 42 U.S.C.

§ 1983. Burchett argues the district court improperly weighed his direct testimony

evidence—that Bromps violated the Establishment Clause by imposing an improper

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
oral condition on Burchett’s parole (limiting the denomination of church Burchett

could attend)—against contrary evidence produced by Bromps. Burchett argues that

the district court should have treated his testimony as true in considering Bromps’

motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and

affirm.

      Ordinarily a district court may not weigh direct evidence presented by the

nonmoving party against evidence presented by the moving party. T.W. Elec. Serv.,

Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). It must

accept a non-moving party’s direct evidence as true, id., and generally may not

disregard direct evidence on the basis that it is implausible or incredible. See

McLaughlin v. Liu, 849 F.2d 1205, 1207-08 (9th Cir. 1988).

      Nonetheless, “[c]onclusory allegations unsupported by factual data will not

create a triable issue of fact” allowing a party to survive a summary judgment motion.

Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). “The mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Here, Burchett merely

averred, in a single statement in a deposition, that Bromps told him he could not attend

a Seventh Day Adventist church while on parole. Burchett did not bolster this bare




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allegation with any supporting facts or evidence.1 Self-serving affidavits may be

cognizable on motions for summary judgment if they go beyond conclusions and

include facts that would be admissible in evidence, see United States v. Shumway, 199

F.3d 1093, 1103-04 (9th Cir. 1999), but “a conclusory, self-serving affidavit, lacking

detailed facts and any supporting evidence, is insufficient to create a genuine issue of

material fact,” FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.

1996); see also Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001)

(summary judgment inappropriate where plaintiff set forth facts directly relevant to

claim with “great specificity”); McLaughlin, 849 F.2d at 1206 (nonmoving party

survived summary judgment where he relied on sworn affidavit that included specific

factual averments, sworn answers to interrogatories, and payroll documentation

supporting his factual allegations).

      Thus, Burchett could not survive summary judgment without setting forth some

detailed facts or other evidence to support his conclusory claim, see Taylor v. List, 880



      1
        For example, Burchett has never alleged he was denied permission to attend
church on the basis of the church’s denomination, and undisputed records show that
the condition he claims was placed on him was never made a part of his official parole
conditions. Further, Burchett has not alleged he was actually deterred in any way
from attending a church of his choosing. Nor could he, as he does not dispute that he
attended church services at locations he chose on several occasions—albeit without
the lawfully required permission of his parole officer—and that he was not disciplined
for attending any particular church rather than another. Nor has Burchett ever sought
additional discovery, and he has never argued—to the district court or to us—that he
had or expected to find any additional facts supporting his claim.

                                           3
F.2d 1040, 1045 (9th Cir. 1989), especially where he bore the burden of proof on that

claim at trial, cf. T.W. Elec. Serv., 809 F.2d at 632 n.3 (“the [summary judgment]

inquiry focuses on whether the nonmoving party has come forward with sufficiently

‘specific’ facts from which to draw reasonable inferences about other material facts

that are necessary elements of the nonmoving party’s claim,” in light of that party’s

burden of proof).

       Accordingly, because we may affirm on any basis fairly supported by the

record, Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007), the judgment

of the district court is affirmed.

       AFFIRMED.2




       2
        Accordingly, we do not reach Burchett’s only remaining argument—that
remand to a different judge is necessary—nor Bromps’ contention that his actions in
imposing parole conditions were entitled to quasi-judicial immunity. We also deny
as moot Burchett’s motion for supplemental briefing on the question of damages
sustained.

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                                                                                FILED
Burchett v. Bromps, No. 10-35763                                                JAN 13 2012

                                                                           MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring in the judgment.                             U.S. COURT OF APPEALS



      I agree with the Memorandum Disposition’s result affirming the district

court’s grant of summary judgment to Robert Bromps. I write separately to

emphasize that I believe summary judgment was properly granted solely because

of the absence of a genuine issue of material fact in this case, a ground accented as

additional and secondary by the majority’s disposition.

      This case is properly resolved solely on the grounds that Burchett relates a

statement of Bromps which makes no sense. Bromps’s alleged statement is

contrary to common sense and, indeed, counterintuitive, since the purpose of

limiting Burchett’s visits were to prevent Burchett from being near children. Since

both the Seventh Day Adventist church and the Assembly of God church have

children present, the statement does not make sense. Put another way, no

reasonable jury could have believed the statement.

      The only reasonable basis upon which such a statement would be made is

that Bromps disfavored Seventh Day Adventists and favored the Assembly of God.

However, there is absolutely no evidence of that attitude and a great deal of

evidence showing the absence of any such attitude.

      If “genuine” under Anderson v. Liberty Lobby, 477 U.S. 242 (1986), is to

                                          1
have any meaning as a limiting concept, it must be to require there be some

reasonable explanation supporting that the claimed fact—in this case, Bromps’s

statement—existed. Here, there is not only no reasonable explanation why Bromps

might have said what Burchett testified to, but every reason to think he would not

say that.

      Therefore, I concur in the judgment.




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