Danny F. Atterbury v. Denise Daly

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANNY F. ATTERBURY,
Plaintiff - Appellant,
v.
DENISE DALY,
Defendant - Appellee.
No. 12-17262
D.C. No. 5:11-cv-02387-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Danny F. Atterbury appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action arising from the collection of his DNA
before being released from civil commitment after pleading not guilty by reason of
insanity to attempted murder. We have jurisdiction under 28 U.S.C. § 1291. We
FILED
DEC 10 2013
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).

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review de novo, Corales v. Bennett, 567 F.3d 554, 562 (9th Cir. 2009), and we
affirm.
The district court properly granted summary judgment on Atterbury’s
retaliation claim because Atterbury failed to raise a genuine dispute of material fact
as to whether defendant ordered the collection of his DNA sample because of his
alleged complaints against her, her department, or the hospital where he was
committed, and whether the collection of DNA failed to advance a legitimate
correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)
(First Amendment retaliation claims require plaintiff to show that an adverse action
was taken against him because of his protected conduct, and that the action
reasonably advanced a legitimate correctional goal).
The district court properly granted summary judgment on Atterbury’s
unreasonable search and seizure claim on the basis of qualified immunity because
California state law requires those found not guilty by reason of insanity of a
felony to provide a DNA sample, and Atterbury’s right to be free of this
requirement under the Fourth Amendment is not clearly established. See Cal.
Penal Code § 296(a)(1) (requiring collection of a DNA sample from any person
found not guilty by reason of insanity of any felony offense); Pearson v. Callahan,
555 U.S. 223, 232-36 (2009) (describing qualified immunity analysis).
12-17262 2

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Atterbury’s contentions regarding the district court’s alleged failure to
construe his allegations liberally, to consider arguments regarding the collection of
DNA from other patients, to grant him leave to amend, to exclude unauthenticated
evidence, to allow him a hearing on the merits of his claims, and to stay this action
pending a decision in Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh’g en banc
granted, 686 F.3d 1121 (9th Cir. 2012), are unpersuasive.
Issues raised for the first time in Atterbury’s reply brief regarding the need
for discovery and the alleged abuse that patients suffer at the hospital during their
civil commitment are deemed waived. See Graves v. Arpaio, 623 F.3d 1043, 1048
(9th Cir. 2010) (per curiam).
AFFIRMED.
12-17262 3

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