David B. Portee v. J. Alvarado;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID B. PORTEE,
Plaintiff - Appellant,
v.
J. ALVARADO; et al.,
Defendants - Appellees.
No. 11-17246
D.C. No. 3:08-cv-03566-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
California state prisoner David B. Portee appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action. We have jurisdiction
under 28 U.S.C. § 1291. While we review for abuse of discretion a district court’s
decision not to permit further discovery, if, as here, the district court fails to
FILED
JUL 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-17246 2
address the motion before granting summary judgment, we review de novo.
Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). We affirm.
The district court properly declined to permit further discovery on the issue
of liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978), because
Portee was unable to show an underlying due process violation to support a Monell
claim. See Jackson v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001)
(“Neither a municipality nor a supervisor . . . can be held liable under § 1983
where no injury or constitutional violation has occurred.”); see also Chance v. Pac-
Tel Teltrac, Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001) (the burden is on the
party seeking additional discovery to proffer sufficient facts to show that the
evidence sought exists, and that it would prevent summary judgment).
The district court did not err in declining to address Portee’s request for a
continuance because an order granting summary judgment necessarily implies
denial of the requested continuance. See Margolis, 140 F.3d at 853 (9th Cir.
1998).
Portee’s remaining contentions, including his assertion that the district court
violated its own discovery order, are unpersuasive.
AFFIRMED.

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