                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               FEB 25 2015

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

CLARENCE A. GIPBSIN (a.k.a. Clarence A.          No. 12-17739
Gibson),                                         D. Ct. No. 2:07-CV-00157-MCE-
                                                 EFB
              Plaintiff-Appellant,

  v.

M. DEFOREST, J. SHELTON, M. GONI, C.             MEMORANDUM*
STONE, C. PRATER,

              Defendants-Appellees.


                   Appeal from the United States District Court
                           Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                    Argued and Submitted November 21, 2014
                            San Francisco, California

Before: RAWLINSON and FRIEDLAND, Circuit Judges, and MARSHALL,
Senior District Judge.**

       Clarence Gipbsin (Gipbsin) appeals pro se from judgments in favor of

defendants in his 42 U.S.C. § 1983 action alleging retaliation for exercise of his

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
First Amendment rights and excessive use of force by California Department of

Corrections and Rehabilitation personnel. We have jurisdiction under 28 U.S.C. §

1291. We affirm on the excessive force claim and reverse and remand on the

retaliation claim.

      Gipbsin’s informal opening brief raises various issues relating to the district

court’s orders and proceedings. Gipbsin’s informal opening brief, however, fails

to raise any cogent arguments regarding how the district court erred. This Court

therefore declines to make any findings on the issues raised in Gipbsin’s opening

brief. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (“Issues raised in a

brief which are not supported by argument are deemed abandoned.”). This Court

addresses only the substantive issues raised by Court-appointed amicus curiae.

      The district court granted summary judgment in favor of Appellees on

Gipbsin’s First Amendment retaliation claim. We review grants of summary

judgment de novo. White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).

The district court erred in two respects. First, the district court limited Gipbsin’s

First Amendment claim to Defendants’ retaliation “for plaintiff filing a civil

lawsuit regarding his religious diet.” Gipbsin’s deposition testimony and operative

complaint, however, demonstrate that his First Amendment claim is broader in

scope. In the complaint, Gipbsin alleges that he was retaliated against for


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requesting a religious dietary meal. In deposition, Gipbsin testified both that he

was retaliated against because he requested a vegetarian meal and because he filed

prior lawsuits. Second, the district court concluded that Gipbsin had failed to

produce evidence that Defendants “were even aware of Plaintiff’s civil lawsuit.”

Gipbsin, however, testified at deposition that he “told [Defendants] that [he] had

the civil case dealing with [his] vegetarian meal.” The district court therefore erred

both by limiting the scope of Plaintiff’s retaliation claim and by finding that there

was no evidence that the Defendants knew about Gipbsin’s prior litigation activity.

We conclude that the district court erred in granting summary judgment as to

Gipbsin’s First Amendment claim.

      Following the district court’s grant of summary judgment on Gipbsin’s First

Amendment claim, Gipbsin’s Eighth Amendment excessive force claim was tried

before a jury and a verdict based thereon was entered in favor of the Appellees.

Appellees argue, citing Lum v. City & County of Honlulu, 963 F.2d 1167, 1169-70

(9th Cir. 1992), that Gipbsin’s retaliation claim is foreclosed by the jury verdict.

Lum is inapplicable to this case. In Lum we held that there was no need to review

denials of summary judgment after a jury trial on the merits. Here, the district

court granted summary judgment on Gipbsin’s retaliation claim and the jury




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considered only Gipbsin’s excessive force claim in rendering its verdict. The

jury’s verdict, therefore, does not foreclose Gipbsin’s retaliation claim.

      We conclude that the district court’s grant of summary judgment was in

error, and remand for further proceedings on Gipbsin’s First Amendment

retaliation claim.

      AFFIRMED in part, REVERSED and REMANDED in part. Costs are

awarded to Plaintiff-Appellant.




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