Derek E. Gronquist v. Kellon Cunningham;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEREK E. GRONQUIST,
Plaintiff-Appellant,
v.
KELLON CUNNINGHAM; et al.,
Defendants-Appellees.
No. 16-35501
D.C. No. 4:15-cv-05008-EFS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted September 27, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Washington state prisoner Derek E. Gronquist appeals pro se from the`
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging federal
and state law claims arising from defendants’ rejection of incoming mail and
responses to his public records requests. We have jurisdiction under 28 U.S.C. §
* 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
OCT 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1291. We review de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir.
2013). We affirm.
The district court properly granted summary judgment on Gronquist’s claim
brought under the Washington Public Records Act (“PRA”). The defendants
submitted a declaration and reliable, reasonably detailed evidence showing that
they conducted an adequate search for responsive documents. See Neighborhood
All. of Spokane Cty. v. Spokane County, 261 P.3d 119, 128 (Wash. 2011) (setting
forth requirements for demonstrating adequacy of a search for documents under the
Washington Public Records Act). A PRA search need not be perfect in result, only
“reasonably calculated to uncover all relevant documents” from “places where they
are reasonably likely to be found.” Alliance v. Cnty. of Spokane, 172 Wn. 2d 702,
720 (2011).
Contrary to Gronquist’s contention, his prior ten-year old state court action
involving different parties and circumstances does not preclude litigation of the
adequacy of defendants’ search in this case. See Matsushita Elec. Indus. Co. v.
Epstein, 516 U.S. 367, 373–74 (1996) (federal courts apply state law when
determining whether a prior state court judgment precludes relitigation of an

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issue); Christensen v. Grant Cty. Hosp. Dist. No. 1, 96 P.3d 957, 960–61 (Wash.
2004) (setting forth elements of collateral estoppel under Washington law).
The district court properly granted summary judgment on both Gronquist’s
facial and as-applied constitutional challenges to the laws and regulations
governing prison mail because Gronquist failed to raise a genuine dispute of
material fact as to whether the rejection of his incoming mail was not reasonably
related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89
(1987) (a prison regulation that “impinges on inmates’ constitutional rights” is
valid “if it is reasonably related to legitimate penological interests”); Bahrampour
v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004) (Turner analysis applies to facial
overbreadth and vagueness challenges to regulation of prison mail, in addition to
as-applied challenges). As the district court noted, had he requested this
information about Kellon Cunningham in a pending lawsuit, he might well have
been entitled to it pursuant to discovery, but no lawsuit was pending.
The district court properly granted summary judgment on Gronquist’s
retaliation claim because Gronquist failed to raise a genuine dispute of material
fact as to whether defendants took any adverse action against him. See Brodheim
v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (elements of a retaliation claim in the

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prison context). The adverse actions of which he complains involved disciplinary
actions taken against other inmates, not Gronquist. Also, calling him a “fucking
rat” although improper does not constitute an “adverse action.” See Oltarzewski v.
Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Neither does his transfer more than a
year after he filed his initial grievances to a different cell. See also Starr v. Baca,
652 F.3d 1202, 1207 (9th Cir. 2011) (elements for supervisory liability under
§ 1983); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“Department
administrators are liable in their official capacities only if policy or custom played
a part in the violation.”).
The district court properly denied Gronquist’s motion to remand because
defendants’ notice of removal of Gronquist’s action from state to federal court was
timely. See 28 U.S.C. § 1446(b)(1) (notice of removal must be filed within 30
days after the receipt by defendant of the initial pleading); Fed. R. Civ. P. 6(a)
(computation of time); Fed. R. Civ. P. (a)(1)(C) (“[I]f the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.”); Murphy Bros., Inc. v. Emrich v.
Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir. 1988) (standard of review).
Because certification was not necessary to resolve the questions of law, the

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district court did not abuse its discretion in denying Gronquist’s motion to certify
questions to the Washington Supreme Court. See Wash. Rev. Code Ann. §
2.60.020; Syngenta Seeds, Inc. v. County of Kauai, 842 F.3d 669, 674 (9th Cir.
2016) (standard of review); Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087
(9th Cir. 2003) (decision to certify rests in the sound discretion of the district
court).
Contrary to Gronquist’s argument that he was denied fair notice of the rules
and procedures pertaining to summary judgment and an opportunity to be heard,
the record shows that both the district court and defendants served Gronquist with
contemporaneous notice of the requirements of summary judgment set forth in
Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider facts not presented to the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (facts not presented to the district
court are not part of the record on appeal).
AFFIRMED.

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