James Benjamin Barstad v. State of Washington, sued jointly

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES BENJAMIN BARSTAD,
Plaintiff-Appellant,
v.
STATE OF WASHINGTON, sued jointly
and severally, in personal/private/
“Individual” and official/public/de
facto/“Person”al capacities; JEFFEREY
UTTECHT, sued jointly and severally, in
personal/private/“Individual” and
official/public/de facto/“Person”al capacities;
JAY INSLEE, sued jointly and severally, in
personal/private/”Individual” and
official/public/de facto/“Person”al capacities,
Defendants-Appellees.
No. 22-35867
D.C. No. 4:21-cv-05105-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, District Judge, Presiding
Submitted March 26, 2024**
Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.
* 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 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Washington state prisoner James Benjamin Barstad appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants failed to protect him from COVID-19. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir.
2015). We affirm.
The district court properly granted summary judgment on Barstad’s claims
against the State of Washington and defendants Uttecht and Inslee in their official
capacities because these defendants are not “persons” under § 1983. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983”); see
also Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002) (state
defendant’s removal of action did not alter the conclusion that the action failed to
present a valid federal claim because “a State is not a ‘person’ against whom a
§ 1983 claim for money damages might be asserted”).
The district court properly granted summary judgment on Barstad’s claims
against defendants Uttecht and Inslee in their individual capacities because Barstad
failed to raise a genuine dispute of material fact as to whether these defendants
were personally involved in any alleged constitutional violations. See Starr v.
Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (a supervisor is liable under § 1983
only if he or she is personally involved in the constitutional deprivation or there is

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a “sufficient causal connection between the supervisor’s wrongful conduct and the
constitutional violation” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying Barstad’s motion
for a further extension of time to serve a second set of interrogatories because
Barstad did not show that he diligently pursued discovery opportunities or that
allowing additional discovery would have precluded summary judgment. See
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1026 (9th Cir. 2006)
(setting forth standard of review and explaining requirements to show an abuse of
discretion in this context).
The district court did not abuse its discretion by denying Barstad’s motion
seeking leave to amend because amendment would have been futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(setting forth standard of review and explaining that leave to amend may be denied
when amendment would be futile).
The district court did not abuse its discretion by denying Barstad’s motion
for reconsideration because Barstad failed to demonstrate any basis for relief. See
Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for relief under Fed.
R. Civ. P. 59(e)).
Barstad’s challenge to the district court’s denial of his motion for

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preliminary injunctive relief is moot. See Mt. Graham Red Squirrel v. Madigan,
954 F.2d 1441, 1450 (9th Cir. 1992) (when underlying claims have been decided,
the reversal of a denial of preliminary injunction would have no practical
consequences, and the issue is therefore moot).
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).
Barstad’s motion to appoint counsel (Docket Entry No. 22) is denied.
AFFIRMED.

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