Adrian Johnson v. D. HOLMS, Sgt.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN JOHNSON,
Plaintiff-Appellant,
v.
D. HOLMS, Sgt.; CULLINA, Correctional
Officer; BINKO, Correctional Officer;
HIESE, S.E.R.T. Correctional Officer;
GARZA, Correctional Officer; MURPHY,
Lt.; OSCAR CARDENAS; MARK
PINEDA,
Defendants-Appellees.
No. 21-16765
D.C. No. 2:18-cv-00647-GMN-EJY
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Adrian Johnson appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging constitutional violations arising from his
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2 21-16765
pretrial detention. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). We affirm in
part, reverse in part, and remand.
The district court properly granted summary judgment on Johnson’s due
process claim because Johnson failed to raise a genuine dispute of material fact as
to whether he lacked an adequate post-deprivation remedy for defendants’
unauthorized deprivations or whether defendants’ authorized actions deprived him
of his property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (explaining that
negligent or intentional, unauthorized deprivations do not violate due process if
“adequate state post-deprivation remedies are available”); Krainski v. Nev. ex rel.
Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010)
(explaining that a procedural due process claim requires a “deprivation of a
constitutionally protected liberty or property interest”).
The district court properly granted summary judgment on Johnson’s access-
to-courts claim because Johnson failed to raise a triable dispute as to whether he
was deprived of a constitutional right. See Torres v. Madrid, 141 S. Ct. 989, 994
(2021) (explaining that 42 U.S.C. § 1983 requires “the deprivation of constitutional
rights by persons acting under color of state law”).
The district court did not abuse its discretion by denying Johnson’s request
for appointment of counsel. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir.

-- 2 of 5 --

3 21-16765
2014) (concluding that no “exceptional circumstances” justified appointing counsel
in part because plaintiff had been able to articulate his legal claims in light of the
complexity of issues involved); Solis v. County of Los Angeles, 514 F.3d 946, 958
(9th Cir. 2008) (setting forth standard of review).
The district court granted summary judgment on Johnson’s retaliation claim,
relying on the Conduct Adjustment Report (“CAR”) to find that Johnson disobeyed
an order and was disruptive, and concluding that the CAR was sufficient evidence
of a legitimate penological purpose for defendants’ actions against Johnson.
However, the CAR indicates that Johnson was obeying the order to walk back to
his cell, albeit slowly and while talking. Moreover, the CAR states that Johnson’s
“disruptive” speech related to his grievances rather than the relevant incident.
Johnson also alleged in his verified complaint that defendants took
disproportionate actions in response to his conduct, including by conducting a cell
extraction and moving him to a mental health ward, filing a false disciplinary
report against him, removing his property from his cell and giving it to other
inmates, threatening him with physical harm, and putting him in administrative
segregation. On this record, Johnson raised a triable dispute as to whether his
grievances and related protected speech were a substantial motivating factor for
defendants’ actions and whether those actions reasonably advanced a legitimate
penological purpose. See Jones v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015)

-- 3 of 5 --

4 21-16765
(explaining that triable disputes remained where plaintiff’s version of events
suggested defendants’ behavior was not justified by a legitimate penological
interest). We reverse the judgment on this claim and remand for further
proceedings.
The district court granted summary judgment on Johnson’s excessive force
claim because, in its view, none of Johnson’s grievances sufficiently raised that
claim and thus he failed to exhaust his administrative remedies. However, the
record shows Johnson filed grievances in which he specifically complained about
the force that was used against him, and those statements sufficiently alerted the
institution to his claim of excessive force. See Griffin v. Arpaio, 557 F.3d 1117,
1120 (9th Cir. 2009) (explaining that a grievance need only “alert the prison to a
problem and facilitate its resolution”). Despite having sufficiently raised excessive
force in his grievances, however, the record is unclear as to whether Johnson
exhausted any grievance addressing excessive force to the final level. We reverse
the judgment on this claim, and remand for the district court to consider in the first
instance whether Johnson exhausted his excessive force claim or whether
administrative remedies were effectively unavailable to him.
Because the district court granted summary judgment on Johnson’s
supervisory liability claim due to the lack of a triable dispute as to any
constitutional violation, we also reverse the judgment on this claim. On remand,

-- 4 of 5 --

5 21-16765
the district court should reconsider Johnson’s supervisory liability claim and can
consider the issue of qualified immunity in the first instance.
Johnson’s motion to procure surveillance video (Docket Entry No. 25) is
denied.
The parties will bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

-- 5 of 5 --