Tobias A. Frank v. DERRICK SCHULTZ, Correctional Counselor, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOBIAS A. FRANK,
Plaintiff - Appellant,
v.
DERRICK SCHULTZ, Correctional
Counselor, individually and in official
capacity and R. BYRD, Disciplinary
Hearing Officer, individually and in
official capacity,
Defendants - Appellees.
No. 14-55890
D.C. No. 5:12-cv-01848-JAK-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
FILED
DEC 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

Federal prisoner Tobias A. Frank appeals pro se from the district court’s
summary judgment in his action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging First and Fourteenth
Amendment violations.1 We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We affirm.
The district court properly granted summary judgment on Frank’s First
Amendment retaliation claim because Frank failed to raise a genuine dispute of
material fact as to whether Schultz took an adverse action against Frank in
retaliation for his allegedly protected conduct. See Brodheim v. Cry, 584 F.3d
1262, 1269-71 (9th Cir. 2009) (setting forth elements of a retaliation claim in the
prison context, and noting that “a plaintiff must show that his protected conduct
was the substantial or motivating factor behind the defendant’s conduct” (citation
omitted)).
Frank’s motion for judgment, filed on September 28, 2015, is denied.
AFFIRMED.
1 We address Frank’s Fourteenth Amendment due process claim in a
concurrently filed opinion.
2

-- 2 of 2 --