Nick Bradley Mennick v. J. SMITH, Warden of IMSI;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICK BRADLEY MENNICK,
Plaintiff - Appellant,
v.
J. SMITH, Warden of IMSI; et al.,
Defendants - Appellees.
No. 10-35747
D.C. No. 1:08-cv-00161-BLW
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Idaho state prisoner Nick Bradley Mennick appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging due process,
Eighth Amendment, and retaliation claims in connection with his confinement in
administrative segregation. We have jurisdiction under 28 U.S.C. § 1291. We
FILED
NOV 23 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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review de novo, and may affirm on any ground supported by the record. Corales v.
Bennett, 567 F.3d 554, 562 (9th Cir. 2009). We affirm.
The district court properly granted summary judgment on Mennick’s claim
that his confinement in administrative segregation violated his due process rights
because, even assuming that there was a liberty interest at stake, prison officials
afforded Neal all the process he was due under the Fourteenth Amendment. See
Toussaint v. McCarthy, 801 F.2d 1080, 1100-01, 1104 (9th Cir. 1986), abrogated
in part on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
The district court properly granted summary judgment on Mennick’s Eighth
Amendment claim because Mennick failed to raise a genuine dispute of material
fact as to whether his continued confinement in administrative segregation placed
him at substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).
Summary judgement was properly granted on Mennick’s retaliation claim
because Mennick failed to raise a triable dispute as to retaliatory motive. See
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting forth the
elements of a retaliation claim).
Mennick’s challenge to the district court’s denial of his motion for a
preliminary injunction is either moot or will not be considered by this court under

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the doctrine of law of the case. See Teamsters Joint Council No. 42 v. Int’l Bhd. of
Teamsters, AFL-CIO, 82 F.3d 303, 307 (9th Cir. 1996) (“Affirmance of the district
court’s grant of summary judgment moots the preliminary injunction appeal.”); see
also United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“[A] court is
generally precluded from reconsidering an issue that has already been decided by
the same court, or a higher court in the identical case.” (citation and internal
quotation marks omitted)).
We do not consider arguments and allegations raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Mennick’s “Motion for Clarification” is granted. We have reviewed the
opening brief filed in this appeal.
AFFIRMED.

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