United States v. 2020-06-10 | 19-35416 | ROBERT LUMPKIN V. JASON SALT | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT J. LUMPKIN,

Plaintiff-Appellant,

v.

JASON SALT, Deputy; et al.,

Defendants-Appellees.

No. 19-35416

D.C. No. 2:18-cv-00330-RSM

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding

Submitted June 2, 2020
**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Robert J. Lumpkin appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging constitutional claims arising out
of his booking at Snohomish County Jail. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. JL Beverage Co., LLC v. Jim Beam Brands Co., 828

*
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

JUN 10 2020

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

2 19-35416
F.3d 1098, 1104 (9th Cir. 2016). We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment because Lumpkin
failed to raise a genuine dispute of material fact as to whether defendants
committed any constitutional violation when they removed some of his clothing
during a strip search for contraband in the public area of the jail. See Bearchild v.
Cobban, 947 F.3d 1130, 1144-45 (9th Cir. 2020) (requirements of Eighth
Amendment sexual harassment claim); Castro v. County of Los Angeles, 833 F.3d
1060, 1067-69 (9th Cir. 2016) (requirements of Fourteenth Amendment deliberate
indifference claim); Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141
(9th Cir. 2011) (en banc) (requirements of Fourth Amendment privacy claim).
Contrary to Lumpkin’s contentions, the district court did not err in declining
to address his excessive force claim which was raised for the first time in his
opposition to summary judgment. See Coleman v. Quaker Oats Co., 232 F.3d
1271, 1292 (9th Cir. 2000) (holding that allowing the plaintiffs to proceed with a
new theory of liability at summary judgment after the close of discovery would
prejudice the defendants).
The district court did not abuse its discretion by denying Lumpkin’s motion
to amend his complaint to add excessive force and due process claims because
Lumpkin’s request for leave to amend was untimely under the district court’s
pretrial scheduling order, and thus Lumpkin could only modify the schedule for

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“good cause and with the judge’s consent.” See Fed. R. Civ. P. 16(b)(4); Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).
However, the district court improperly assessed a strike for purposes of 28
U.S.C. § 1915(g), because the district court had concluded that Lumpkin failed to
raise a genuine dispute of material fact on any of his claims, and thus defendants
were entitled to summary judgment. See El-Shaddai v. Zamora, 833 F.3d 1036,
1044 (9th Cir. 2016). We reverse the judgment as to the district court’s assessment
of a strike only, and remand for the district court remove the language counting the
case as a strike.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part, and REMANDED.